Court File and Parties

Court File No.: 149-23 Date: 2025-07-28 Superior Court of Justice – Ontario

Re: R. v. Leon Kofman

Before: Justice I.F. Leach

Counsel:

• Jonathan Geiger, for the Crown
• Kim Schofield and Catherine Szpulak, for the accused

Heard: December 16, 2024

Endorsement

Overview

[1] This endorsement focuses on a request by the defendant herein for an order granting his counsel leave to cross-examine, (in the context of an application brought pursuant to section 24 of the Canadian Charter of Rights and Freedoms to exclude evidence flowing from police execution of issued search warrants), the police officer who swore an affidavit providing information to the reviewing justice who issued challenged search warrants; i.e., the affiant of what is known in colloquial terms as an "ITO" affidavit.

[2] The full context surrounding that request for leave to cross-examine was outlined in extensive detail in a companion endorsement being released in this matter, R. v. Kofman, 2025 ONSC 4371, and those extensive details accordingly will not be replicated here. This endorsement instead should be read together with that other endorsement.

[3] However, simply by way of a very broad overview, to provide at least some of that context to those possibly lacking immediate access to that other endorsement:

a. At the time of the aforesaid request for leave to cross-examine that ITO affiant, the accused herein, (Leon Kofman), had been charged with nine offences; three under the Cannabis Act, S.C. 2018, c. 16 ("the CA"), and five under the Criminal Code, R.S.C. 1985, c. C-46 ("the Code"). At the risk of over-simplification, Mr Kofman was charged with three counts alleging unlawful possession of cannabis for the purpose of distributing or selling it, and six counts of unlicensed, prohibited, unauthorized and/or unregistered possession of firearms, restricted firearm and/or prohibited device.

b. Those charges stemmed from evidence discovered during police execution of search warrants, issued pursuant to section 87 of the CA, authorizing police searches of a specified rural farm property located in the community of Waterford, Ontario, formally owned by an Ontario corporation in respect of which Mr Kofman was and is a director, and a specified residential property here in the city of London that was said to be Mr Kofman's personal residence.

c. The said warrants apparently were issued on or about October 29, 2021, (the date on which an application and supporting ITO affidavit sworn by Detective Constable or "D.C." William Crawford were submitted to a reviewing justice), and were executed simultaneously on November 3, 2021, along with other warrants issued in relation to the same extended police investigation dubbed "Project Gainsborough". Mr Kofman was arrested in the course of the warrant issued in relation to the Waterford property being executed, when he was located in a residence at that property.

d. By way of a pre-trial application, the nature of which was clarified and/or refined through the submissions of counsel, the accused Mr Kofman effectively sought:

i. a finding that the relevant search warrants should not have been issued because the relevant ITO affidavit used by the police to obtain the relevant search warrants, (especially after suggested amplification and excision as per authority applicable to such matters), should not be regarded as having contained information sufficient to justify the warrants being issued, such that the resulting searches should be regarded in law as warrantless and unreasonable;

ii. further or in the alternative, a finding that the court should exercise its residual discretion to set aside the said warrants, (even if the ITO affidavit, after amplification and excision, contained information sufficient to otherwise justify the warrants being issued), on the basis of alleged police misconduct entailing subversion of the warrant authorization process, such that the resulting searches should be regarded in law as warrantless and unreasonable;

iii. a finding that there accordingly was a contravention of the rights guaranteed to Mr Kofman by section 8 of the Canadian Charter of Rights and Freedoms, which provides that "Everyone has the right to be secure against unreasonable search and seizure";

iv. a finding that there was an associated contravention of the right guaranteed to Mr Kofman by section 9 of the Charter, which provides that "everyone has the right not to be arbitrarily detained or imprisoned"; and

v. a ruling excluding, at trial, pursuant to s.24(2) of the Charter, evidence seized as a result of the alleged contraventions of Mr Kofman's aforesaid Charter rights, as well as evidence of all utterances made by Mr Kofman to the police throughout his interactions with them, and any derivative evidence obtained thereby or thereafter.

e. In response, it was the Crown's contention:

i. that the underlying ITO affidavit, even if amplified and/or excised in the manner suggested by counsel for Mr Kofman, provided a more than sufficient basis on which the relevant search warrant authorizations could have been issued, and the resulting searches authorized by those warrants accordingly were reasonable and lawful;

ii. that any failings of the police in applying for and securing the relevant search warrants did not entail subversion of the warrant authorization process, or provide any adequate basis for exercise of the court's residual discretion to set aside such warrants, such that the resulting searches should be regarded in law as warrantless and unreasonable;

iii. that the accused accordingly had failed to establish any breach or breaches of the rights guaranteed to the accused by section 8 of the Charter;

iv. that the accused therefore similarly had failed to establish that the detention and/or arrest of the accused, ancillary to those legally authorized searches, gave rise to any consequential breach of the rights guaranteed to the accused by section 9 of the Charter; and

v. that, in the alternative, (i.e., if any of the Charter right violations alleged by the accused had been established), the circumstances did not warrant the requested exclusion of evidence pursuant to s.24(2) of the Charter.

f. As noted in the companion endorsement cited above, extensive material was filed in relation to the accused's application by the applicant, and by the Crown in response, all of which was described in detail in that companion endorsement. That extensive material included a copy of the lengthy 165-page ITO affidavit sworn by D.C. William Crawford on October 29, 2021, and thereafter submitted to obtain the search warrants challenged by the accused, as well as other warrants.

g. At the outset of the pre-trial hearing of the accused's application, counsel made submissions addressing a request advanced therein, and noted above, for an order granting Mr Kofman's counsel leave to cross-examine D.C. Crawford in relation to that ITO affidavit.

h. That request for leave to cross-examine was the subject of fulsome argument before me on December 16, 2024, during which it was clarified and confirmed that defence counsel, on behalf of Mr Kofman, was seeking leave to cross-examine D.C. Crawford in relation to five specified areas:

i. "hemp checks" conducted by police in relation to the underlying investigation;

ii. the "ability to differentiate cannabis plants from hemp plants" (sic);

iii. interpretation of conversation that took place in a Dodge Ram vehicle, and which was being monitored by police via an authorized audio probe placed herein;

iv. a suggested failure to include information in the ITO affidavit regarding additional surveillance conducted in relation to Mr Kofman, (including the results of surveillance conducted on March 15, 26, 17, 18 and 19 of 2021, on May 26 and 27 of 2021, and on September 28, 2021), which was said to detract from grounds that Mr Kofman was involved in nefarious activity; and

v. a suggested failure by D.C. Crawford be "full, frank and fair in the framing of paragraphs 180 and 436 of the ITO" affidavit.

i. I then reserved my decision in relation to the aforesaid defence request for leave to cross-examine D.C. Crawford in relation to the above matters, and the matter was adjourned to December 19, 2024, for continued hearing of the applicant's application to exclude evidence.

j. By the afternoon of December 18, 2024, I had made my decision in relation to the defence request for leave to cross-examine D.C. Crawford, but had not yet completed a written endorsement with reasons in that regard, and it was clear that I would not be able to complete such an endorsement prior to the end of the day or the continuation of the application's hearing. It also seemed ill-advised to attempt delivery of oral reasons in that regard the following morning, when it seemed likely that the entirety of the hearing time scheduled and reserved for that following day would be consumed in its entirety by necessary completion of the cross-examination of D.C. Crawford, (to the extent that was being permitted), and counsel's oral submissions in relation to the accused's application. In the circumstances, email correspondence was sent to counsel on the afternoon of December 18, 2024, at my direction, which read in its entirety as follows, in text I will italicize here simply to help differentiate that text from the rest of these reasons:

Counsel,

As my complete decision with reasons in relation to the defendant's requests for leave to cross-examine the affiant of the "ITO" affidavit (D.C. Crawford) has not yet been finalized, and we are resuming tomorrow morning, I am indicating my decision in relation to those requests now, for reasons to follow. In particular:

1. In relation to the request for leave to cross-examine D.C. Crawford in relation to "the hemp checks conducted", the request is granted, as per the consent of the Crown.

2. In relation to the request for leave to cross-examine D.C. Crawford in relation to the "ability to differentiate cannabis plants from hemp plants":

a. For the benefit of counsel, I will indicate my view now that the request as posed/worded is non-sensical, insofar as it suggests on its face that hemp plants are not cannabis plants, which seems incorrect not only as a matter of fact but of law. In that regard:

i. As per the definitions found in s.2(1) of the Cannabis Act, S.C. 2018, "cannabis" means a "cannabis plant", and "cannabis plant" means any plant "that belongs to the genus cannabis".

ii. As reflected in section 160.1 of the Cannabis Act, supra, marihuana is a type of cannabis plant. However, as reflected in section 160 of the Cannabis Act, supra, and s.1(2) of the Industrial Hemp Regulations SOR/2018-145 in particular, hemp is also a type of cannabis plant regulated by the cannabis legislation; e.g., with industrial hemp being defined as meaning "a cannabis plant, or any part of that plant, in which the concentration of THC is 0.3% w/w or less in the flowering heads and leaves".

iii. It accordingly makes no sense to ask about anyone's ability to differentiate cannabis plants from hemp plants or vice-versa, because hemp plants are cannabis plants. I accordingly would have denied that particular request for leave to cross-examine on its literal wording.

b. However, from the context provided and the submissions received, I believe defence counsel, in seeking leave to cross-examine D.C. Crawford as per this particular request, actually intended to focus on ability to differentiate cannabis plants that are marihuana (cannabis marihuana plants) from cannabis plants that are hemp (cannabis hemp plants). I therefore have considered this particular request for leave to cross-examine D.C. Crawford on that basis, particularly insofar as D.C. Crawford indicated his belief, in the "Affiant Note" at the top of page 76 of the ITO affidavit, that the plants he was referring to therein were "cannabis marihuana plants".

c. Construed in that manner, the defence is granted leave to cross-examine D.C. Crawford in relation to the basis of his indicated belief that the plants he was describing were "cannabis marihuana plants", including:

i. whether or not D.C. Crawford was relying on the indications in the surveillance report completed by D.C. Hillier on October 13, 2021, D.C. Crawford's independent assessment of the photographs depicted at page 75 of the ITO affidavit, and/or some other basis of information or assessment; and

ii. the extent of D.C. Crawford's personal ability, (if any), at the time of swearing the ITO affidavit, to differentiate between cannabis marihuana plants and cannabis hemp plants.

3. In relation to the request for leave to cross-examine D.C. Crawford in relation to "interpretation of the conversation on the Dodge Ram probe", the request for leave to cross-examine is denied.

4. In relation to the request for leave to cross-examine D.C. Crawford in relation to "failure to include surveillance on [Mr] Kofman which detracted from grounds that he was involved in nefarious activity including [March 15, 16, 17, 18 and 19 of 2021, May 26 and 27 of 2021, and September 28, 2021]", the request for leave to cross-examine is denied.

5. In relation to the request for leave to cross-examine D.C. Crawford in relation to his suggested "failure to be full, frank and fair in the framing of paragraph 180 and 436 of the ITO", the request for leave to cross-examine is denied.

I will finalize and release my complete reasoned endorsement in that regard as soon as possible.

For now, thank you for your ongoing help with this matter.

Justice Leach

k. Matters then proceeded the following day, (i.e., December 19, 2025), with testimony from D.C. Crawford, (including the cross-examination in respect of which leave had been granted, prefaced by relatively brief examination in chief by the Crown, and followed by re-examination by the Crown), and oral submissions received in relation to the accused's application once the evidentiary portion of the applicant's hearing had been concluded. I then reserved my decision in relation to the accused's application.

l. On March 10, 2025, I advised counsel via correspondence, sent by email on the afternoon of March 20, 2025, that the accused's application was being dismissed for reasons to follow.

m. At a trial readiness hearing on March 12, 2025, defence counsel confirmed that the accused would be re-electing his mode of trial from judge and jury in this court to a judge alone trial in this court, with the consent of the Crown.

n. The matter proceeded to trial before me on March 17, 18, 19, 20 and 21, 2025, following which I reserved judgment; a judgment now scheduled to be delivered on October 24, 2025.

[4] As indicated in the email correspondence sent to counsel on the afternoon of December 18, 2024, it was my intention to provide promised reasons for my decision reached in relation to defence counsel's request for leave to cross-examination D.C. Crawford "as soon as possible".

[5] However, it thereafter increasingly seemed that my decision regarding defence counsel's request for leave to cross-examine D.C. Crawford would be better understood having regard to the broader context of the presented application material; a context which necessarily would be described in extensive detail in the endorsement I would be preparing after completion of argument of the accused's application, and the preparation of my written reasons reflecting whatever decision I would be making in that regard.

[6] In the circumstances, I deliberately delayed finalize and release of my promised written reasons for my decision regarding defence counsel's leave to cross-examination D.C. Crawford until finalization and release of the companion endorsement cited above.

[7] Here now, however, are the promised reasons for my decision regarding the defence request for leave to cross-examine D.C. Crawford.

Proposed Areas of Cross-Examination

[8] The original notice of application filed by counsel for the accused, on or about November 18, 2024, included an indication that the accused was seeking leave to cross-examine the ITO affiant, D.C. Crawford, "on the basis that cross-examination [was] reasonably likely to assist the Applicant in making full answer and defence".

[9] Beyond making general reference to defence counsel's submission that there were a number of factors weighing "heavily towards granting leave to cross-examine", the same notice of application indicated that the accused was seeking leave to cross-examine D.C. Crawford in the following areas:

a. the "reasons why he swore in the ITO there were no licences at [the Waterford property], when he was in a meeting discussing such";

b. the "degree of work he did on the licence searches"; and

c. the "ability to tell the difference between cannabis plants and hemp plants" (sic).

[10] However, defence counsel's request for leave to cross-examine D.C. Crawford, in relation to his ITO affidavit, had been modified somewhat by the time counsel appeared before me on December 16, 2024.

[11] In particular, as noted above, (and as indicated and confirmed in a further document entitled "LEAVE TO CROSS-EXAMINE THE AFFIANT" that was delivered by defence counsel on or about December 13, 2024), the finalized areas or "grounds" in respect of which defence counsel was seeking leave to cross-examine D.C. Crawford were specified as follows:

i. "The hemp checks conducted", in respect of which the Crown was said to have indicated its consent to contemplated cross-examination in that regard;

ii. "Ability to differentiate cannabis plants from hemp plants" (sic);

iii. "Interpretation of the conversation on the Dodge Ram probe"; and

iv. "Failure to include surveillance on [Mr] Kofman which detracted from grounds that he was involved in nefarious activity including:

a. March 15, 2021; b. March 16, 2021; c. March 17, 2021; d. March 18, 2021; e. March 19, 2021; f. May 26, 2021; g. May 17, 2021; [and] h. September 28, 2021"; and

v. "Failure to be full, frank and fair in the framing of paragraph (sic) 180 and 436 of the ITO".

[12] Before outlining my reasons for the decision I indicated in relation to those various particular requests for leave to cross-examine D.C. Crawford, I turn next to an overview of the law governing such requests.

General Principles

[13] General principles applicable to requests for leave to cross-examine, in relation to the information provided to obtain a search warrant, include the following:

a. It is well-established that an accused against whom evidence of the results of an authorized search or seizure are tendered for admission has no unqualified right to cross-examine the author or informational source of the material on the basis of which the search or seizure authority was granted. Leave is required.

b. Whether leave should be granted to cross-examine an ITO affiant or sub-affiant is left to the reviewing judge, and is a matter involving judicial discretion.

c. To obtain leave, an applicant must show a basis, (often referred to as "the Garofoli threshold" for ease of reference), for the view that there is a reasonable likelihood that the proposed cross-examination will elicit testimony tending to discredit the existence of one or more of the preconditions to the authorizing authority; e.g., the existence of reasonable and probable grounds in the sense required. Bald assertions that the cross-examination sought will or might elicit helpful information to the defence are not enough.

d. The leave requirement is a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of relevant issues. It is intended to ensure that cross-examination will be relevant to the issue to be decided, to preclude unnecessary delays, and to avoid a waste of court resources.

e. The standard for leave allows only a narrow window for cross-examination, not because the test for obtaining such leave is onerous, but because there is a similarly confined basis upon which the enabling authority, (e.g., an issued search warrant), may be set aside. In particular, a reviewing judge is asked to determine whether, based on the material before the authorizing judge, as excised and/or amplified on review, the authorizing judge could have granted the search or seizure authority. In determining whether cross-examination should be permitted, counsel and the reviewing judge accordingly must remain strictly focused on that question to be determined. Therefore:

i. If the proposed cross-examination of an affiant or sub-affiant is unlikely to assist the reviewing judge in making that determination, leave to cross-examine should be refused.

ii. However, if the proposed cross-examination falls within those narrow confines, the defence need not go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. An applicant need only show that there is a reasonable likelihood that the proposed cross-examination will elicit testimony of value to the issue framed for the reviewing judge.

f. It should also be remembered that, on a motion for leave to cross-examine an ITO affiant, the focus of the inquiry is on the reasonableness and honesty of the affiant's belief about the existence of the requisite grounds, and not on the ultimate accuracy of the information upon which the affiant relies; i.e., on a determination of whether the allegations in support of the authorization were ultimately true. A proposed cross-examination directed at showing only that some of the information relied upon by the affidavit is false therefore is unlikely to warrant leave unless it can also support an inference that the affiant knew or ought to have known that it was false. In that regard:

i. Because the focus is on whether the affiant had a reasonable belief in the existence of the requisite statutory grounds for issuing the relevant search or seizure authorization, (and not on whether the allegations offered in support of the authorization ultimately were true), that turns on what the affiant knew or ought to have known at the time the affidavit in support of the authorization was sworn.

ii. An error or omission made by the affiant accordingly is not relevant if the affiant could not reasonably have known of it.

iii. It is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, affiants do not need to conduct their own investigation.

iv. The fact that cross-examination of an affiant might show that some of the information he or she relied upon was erroneous or false generally is not a ground to grant leave for cross-examination, since a reasonable belief by the affiant will permit the issuance of the search warrant. Cross-examination will be permitted in that regard only where an accused has shown a basis for the view that cross-examination has a reasonable likelihood of establishing the affiant knew or ought to have known certain information was erroneous or false in a material respect. Where the defence does not lead an evidentiary basis to find that an affiant knew the information he or she swore to in an ITO was erroneous, false or misleading, (e.g., where evidence is limited to information in the ITO being imparted to the affiant or obtained from a database, without evidence that the affiant had any reason to believe the information was false), cross-examination in that regard generally should be denied.

v. For similar reasons, cross-examination of sub-affiants reasonably may be denied where there is no demonstrated factual basis to indicate that the affiant was aware of any impropriety in underlying reporting relied upon by the affiant, (e.g., deliberate manipulation of underlying reports), ignored signs of wrongdoing, or was wilfully blind to indications of impropriety. In that regard, an accused seeking leave to cross-examine must show a threshold factual basis raising a reasonable likelihood that cross-examination will produce probative evidence tending to show significant police misconduct in securing the search order.

g. In relation to suggested omissions from an ITO:

i. It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request, and that duty includes the duty not to omit material facts. Materiality relates to something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter.

ii. Without limiting the generality of the foregoing, where the mentioning of certain facts or "non-facts" would not have undercut the reasonable grounds for belief in satisfaction of the preconditions for issuing a warrant, their omission is not material in this context.

iii. Moreover, while there may be circumstances in which the duty to provide full and fair disclosure will require an applicant for a search warrant to negative something unseen or not done, such circumstances arise infrequently. In most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard or not done. In such cases, a failure to specifically refer to things not seen, heard or done does not constitute non-disclosure. In particular, there is no obligation on applicants for search warrants to anticipate, and explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event.

iv. It is only where the defence establishes some basis for the view that there are material omissions or inaccuracies in the ITO that cross-examination of an affiant or sub-affiant will be permitted in that regard.

v. Moreover, where it is clear on the face of an ITO affidavit that certain information has been omitted, permitting an attack on the validity of the warrant based on the omission, cross-examination is unnecessary.

h. Where an applicant's quarrel is with the inferences the affiant drew from primary facts about which there is no dispute, leave to cross-examine should be denied. Complaints about an affiant's inferences, like claims of omissions, inconsistencies or conclusory or inaccurate statements, afford no basis for cross-examination. It should also be remembered that a trained police officer is entitled to draw inferences, and make deductions based on experience.

i. Where leave to cross-examine is granted, the scope of cross-examination should be limited to questions that seek to establish that there was no basis on which the authorization could have been granted.

[14] Having regard to the detailed background context described in my companion endorsement cited above, (limited to the information that was presented and available to me when the defence request for leave to cross-examine D.C. Crawford was being argued), and with the above principles in mind, I turned to consideration of the particular areas of requested/proposed cross-examination in this case.

Assessment

[15] The following sub-paragraphs outline my reasoning and determinations in relation to each area of cross-examination proposed/requested by defence counsel:

a. Hemp Checks Conducted

i. During the course of her oral submissions, defence counsel understandably did not spend much time addressing that particular request, having regard to Crown counsel's apparent consent in that regard. However:

1. It was emphasized that, despite subsequent confirmation and agreement that there was a licence authorizing the production/cultivation of industrial hemp at the Waterford property at the time of the relevant warrant application, and evidence that officers participating in the underlying investigation were speaking about hemp at meetings, making hemp-related licensing inquiries in relation to persons and properties of interest, and clearly discussing and addressing the Waterford property as a target of interest, D.C. Crawford apparently did not know of the industrial hemp licence relating to the Waterford property and made no mention of it in his ITO affidavit.

2. In the circumstances, cross-examination of D.C. Crawford was said to be appropriate; e.g., to clarify what licensing inquiries had been made and whether they had extended to the Waterford property, why inquiries sufficient to detect the existence of the relevant industrial hemp licensing relating to the Waterford property had not been made, (if that was the case), and why information regarding that licence had not been placed before the reviewing justice who was asked to issue the impugned search warrants.

ii. During the course of his oral submissions, Crown counsel confirmed that the Crown was consenting to the granting of leave permitting defence counsel to cross-examine D.C. Crawford in relation to such matters. In that regard:

1. Crown counsel noted party agreement that, at the time of the underlying ITO affidavit submission and search warrant application, an industrial hemp licence had been issued that permitted the cultivation of industrial hemp at the Waterford property, and there had been no mention of such a licence in the ITO affidavit. Not only did the ITO affidavit contain an omission in that regard, but it also had included inaccurate/incorrect indications that there were no licences authorizing the production of cannabis at the Waterford property, or "any other type of cannabis licensing" relating to that property.

2. Crown counsel emphasized the Crown's position that warrant validity was not to be determined on the basis of whether information set forth in the ITO affidavit and believed by the affiant at the time ultimately was accurate or not, but on the what the ITO affiant knew or ought to have known at the time the affidavit was sworn and submitted in support of the request for the relevant search warrants to be issued. Having regard to such considerations, the request for leave to cross-examine D.C. Crawford in relation to such industrial hemp licensing, in the suggested absence of any clear evidentiary basis that D.C. Crawford knew the information he swore to in the affidavit about licensing related to the Waterford property was erroneous, false or misleading, was said by Crown counsel to be "close to the line".

3. However, insofar as the presented evidence included references to hemp licensing checks being conducted in relation to targets of interest during the course of the underlying investigation, reports being generated in that regard to which D.C. Crawford had access, and D.C. Crawford being present at meetings where the results of such licensing inquiries were being discussed, Crown counsel was prepared to concede that defence counsel should be granted leave to cross-examine D.C. Crawford in relation to matters such as:

   a. what he knew and did not know about inquiries made or not made concerning cannabis licensing relating to the Waterford property;

   b. the extent to which he personally had requested, directed and/or participated in the making of such inquiries and/or why he had not done so;

   c. whether he had any knowledge or suspicion about the existence of such licensing; and

   d. more generally, why no reference to the confirmed industrial hemp licence relating to the Waterford property had been included in the ITO affidavit.

4. In that regard, Crown counsel conceded that the answers to such questions could have a bearing on warrant validity, in terms of:

   a. whether D.C. Crawford's stated belief could be regarded as honest and objectively reasonable; and/or

   b. whether the ITO affidavit's omission of any reference to the relevant industrial hemp licence, (and corresponding effective denials of its existence), represented a failure to make full and frank disclosure of information D.C. Crawford knew or ought to have known, thereby potentially supporting an exercise of the court's residual discretion to invalidate warrants to address concerns about deliberate subversion of the warrant authorization process.

iii. In my view, this requested area of cross-examination warranted the granting of leave for the reasons noted by counsel, and by Crown counsel in particular. Without limiting the generality of the foregoing, I nevertheless will add the following:

1. In my view, existence of a license authorizing the production/cultivation of industrial hemp at the Waterford property was clearly material information with possible direct implications concerning satisfaction of the statutory requirements for issuing a search warrant in relation to the Waterford property, and possible indirect implications as to whether those requirements had been satisfied in relation to the search warrant requested in relation to Mr Kofman's residence. In particular:

   a. Supposed absence of any current cannabis-related licensing in relation to the Waterford property would lend obvious support to an inference that cannabis plants of any kind seen growing at the location were unauthorized and illicit; an inference which, by itself, would support a reasonable belief that an offence contrary to the CA had been committed, (e.g., unlicensed and unauthorized large scale cultivation of cannabis), and that evidence of that offence would be found at the Waterford property.

   b. Insofar as Mr Kofman had been confirmed to be a director of the corporation that owned the Waterford property, unlicensed and unauthorized large scale cultivation of cannabis at that property, inherently unlikely to be occurring there without his knowledge and approval, would lend support to a reasonable belief, (particularly if that belief already was supported by other information), that Mr Kofman was involved in the extensive illicit cannabis trafficking/distribution operation being carried on by his associates Mr Kyle and Mr Godoy-Velasquez, in turn lending support to a further inference that evidence of such offensive behaviour would be located in Mr Kofman's residence.

   c. Conversely, existence of an industrial hemp licence authorizing the cultivation/production of such cannabis at the Waterford property would make it more difficult to ascertain whether all or some of the cannabis plants seen growing at that property were authorized or illicit, in turn affecting the credibly-based probability determinations to be made in that regard, especially if other information available in the overall factual matrix was insufficient to buttress a reasonable inference that some of those plants were unlicensed and illicit cannabis.

   d. For such reasons, information about the existence of the relevant industrial hemp license was clearly material, in the sense that it had a bearing on whether an adequate basis existed on which the relevant warrants could have been issued. If D.C. Crawford knew or should have known about that industrial hemp license, in the sense required, that material information should have been provided to the reviewing justice for consideration.

   e. I was mindful of authority, noted above, indicating that cross-examination is unnecessary in circumstances where it is clear on the fact of an "ITO" affidavit that material information has been omitted, thereby permitting an attack on the validity of the warrant based on the omission in any event. In my view, however, a measure of cross-examination as requested was appropriate in that regard, in the present circumstances; i.e., to address whether and how the ITO affidavit notionally should be amplified to include such information, what D.C. Crawford knew or ought to have known in that regard, the particular reasons for his omission of that information, and whether that particular omission may have been the product of a decision to present information in that regard to the reviewing justice that was less than full, frank and fair; something which, in turn, may have been indicative of an intention to subvert the warrant application process.

b. Ability to Differentiate Cannabis Plants from Hemp Plants

i. In the course of her submissions, defence counsel indicated her reliance on indications made by other police officers during the course of the preliminary inquiry, (e.g., Officer Mitchell and D.C. Hillier), regarding the difficulty of differentiating marihuana cannabis from hemp cannabis, and/or the inability to do so from a significant altitude such as that involved during "fly over" surveillance conducted in relation to a property. Defence counsel sought to question D.C. Crawford about such matters, as a basis for challenging the reasonableness of his indications, at paragraph 242 of the ITO affidavit, that D.C. Hillier had detected a "large outdoor cannabis grow operation" at the Waterford property during the "fly over" surveillance of the property carried out on October 13, 2021, and D.C. Crawford's indication of his belief that plants depicted in images taken from video made of the property during that "fly over" surveillance depicted "cannabis marihuana" plants.

ii. In the course of his submissions, Crown counsel opposed cross-examination in relation to such matters on a number of submitted grounds, including the following:

1. The evidence relied upon by defence counsel from the preliminary inquiry was provided by officers other than D.C. Crawford, more than a year after the challenged search warrants were sought, and self-evidently did not form any part of the information provided to or relied upon by D.C. Crawford when he swore and submitted his ITO affidavit.

2. Insofar as D.C. Crawford was simply reporting and relying upon what D.C. Hillier had indicated, (i.e., regarding the precise nature of the cannabis plants observed on the Waterford property), the ultimate accuracy of that indication was irrelevant to D.C. Crawford relying upon and honestly believing that indication in the absence of any indication that anything was "amiss" in that regard; i.e., signs that D.C. Hillier was misleading D.C. Crawford or omitting material information. The law was clear that ITO affiants, in such circumstances, have no obligation to carry out their own independent investigation in such circumstances. They are entitled to rely on the information provided to them by other officers.

3. It was said, more generally, that the ability or inability of D.C. Crawford or any other police officers would not further the inquiry as to whether or not there were adequate grounds on the basis of which the challenged search warrants could have issued. In particular:

   a. At best, it was said, the proposed cross-examination would simply propose to D.C. Crawford that his stated belief at the time of swearing the ITO affidavit, as to the nature of the cannabis plants observed at the Waterford property, was inaccurate.

   b. To the extent it was difficult or impossible to differentiate between marihuana cannabis and hemp cannabis during fly over surveillance conducted at a significant altitude, (something which Crown counsel was prepared to concede), defence counsel had the ability to argue that point in any event without the need for any cross-examination of D.C. Crawford in that regard.

iii. As indicated above, I was prepared to allow a measure of indicated cross-examination in this area, but for reasons not altogether the same as those put forth by defence counsel. In that regard:

1. I was not persuaded by defence counsel's apparent reliance on the evidence elicited during the preliminary inquiry to suggest or support a supposed general truism that it was impossible for anyone to differentiate between marihuana cannabis plants and hemp cannabis plants during fly over surveillance. In my view, such a conclusion likely would require expert opinion evidence, (e.g., addressing the existence or non-existence of differentiating features between marihuana cannabis plants and hemp cannabis plants, and factors such as altitude, angle and lighting affecting potential ability to discern such differences), and certainly more than indications by individual officers as to how they perceived their own abilities and/or limitations in that regard.

2. I independently had concerns about whether such cross-examination would assist with determination of the issues I had to decide on the application, but for reasons other than those suggested by Crown counsel. In particular:

   a. On the one hand, an inability to differentiate between marihuana cannabis plants and hemp cannabis plants during fly over surveillance of the Waterford property arguably would undermine a credibly-based probability, based on such observations alone, that plants observed during such fly over surveillance were definitely marihuana cannabis plants, the production/cultivation of which, at the Waterford property, apparently was not the subject of any relevant license on any view of the underlying facts.

   b. On the other hand, an inability to differentiate between marihuana cannabis plants and hemp cannabis plants during fly over surveillance of the Waterford property also arguably would make it impossible to confirm that all cannabis plants observed there were hemp cannabis, or to rule out the possibility that some or all of the cannabis plants observed there were marihuana cannabis. The latter inability arguably would assume greater importance if the available evidence, considered in its totality, provided other grounds for believing that some or all of the cannabis plants being grown at the Waterford property were unlicensed marihuana cannabis.

3. In the result, I nevertheless concluded that cross-examination in this area, focused on the two particular areas I identified, should be permitted for the following reasons:

   a. From my review of the ITO affidavit, the basis of D.C. Crawford's stated belief in paragraph 242 of that affidavit, (i.e., that the plants observed at the Waterford property during the fly over surveillance were cannabis marihuana plants), was unclear. In particular, it was not clear whether he was relying on indications provided by D.C. Hillier in that regard, his own independent assessment of the images recorded in the video taken during the relevant fly over surveillance, and/or upon some other source of information. If D.C. Crawford was relying on information provided by another officer, without any indication that anything was amiss in that regard, it arguably would have no bearing on the determinations I was required to make, for the reasons outlined above.

   b. With hesitation, I was inclined to permit a measure of cross-examination as to D.C. Crawford's personal ability (if any), at the time of searing his ITO affidavit, to differentiate between marihuana cannabis plants and cannabis hemp plants. In my view, if D.C. Crawford indicated in response to questions about the basis of his belief stated in paragraph 242 of the ITO affidavit that he was relying exclusively on nothing but his own review of the video recorded images, but also acknowledged that he personally had no ability to differentiate between marihuana cannabis and hemp cannabis, that arguably would undermine the reasonableness of his stated belief in that regard. However, if D.C. Crawford indicated that his stated belief was based on indications provided by others, and/or other considerations set forth in his ITO affidavit or otherwise, the results of such cross-examination arguably might have little or no significance.

c. Interpretation of the Conversation on the Dodge Ram Probe

i. In the course of her submissions, defence counsel essentially took issue with indications or suggestions by D.C. Crawford in his ITO affidavit that the relevant police monitored conversation, (and in particular, the conversation that took place between Mr Kofman and another male in the relevant Dodge Ram vehicle on September 30, 2021), was a discussion about matters relating to marihuana cannabis; i.e., as opposed to hemp cannabis. In that regard:

1. Defence counsel took particular issue with indications/suggestions by D.C. Crawford that the "Batch One" trimmer being discussed during the conversation was a device intended to be used by Mr Kofman in relation to the processing of illicit marihuana cannabis; e.g., insofar as D.C. Crawford described the item as a "large white cannabis marihuana trimmer" in paragraph 229 of his ITO affidavit.

2. It was emphasized that the manufacturer of the device, in a document defence counsel wished to put to D.C. Crawford in cross-examination, described the device as a "dry batch hemp and cannabis trimmer".

3. It was also suggested that such evidence should form part of a proposed amplification of the ITO affidavit, to be considered in determining validity of the challenged search warrants.

ii. In my view, however, defence counsel essentially was quarreling with inferences D.C. Crawford was drawing; i.e., inferences based not only on the undisputed substance of the relevant police-monitored conversation that took place in the Dodge Ram vehicle, (which included references to a need to maintain secrecy in relation to certain activity), but on other information set forth in the ITO affidavit. Without limiting the generality of the foregoing:

1. The ITO affidavit also presented information indicating that such a "Batch One" trimmer had been observed by police at the Bryanston facility, (from which Mr Kofman and his companion apparently had retrieved the item they were transporting), in close proximity to other equipment clearly being used in the processing of substantial quantities of illicit cannabis. Whatever the manufacturer of the device may have indicated in its published material, (and I note that the manufacturer's reference to the device being a "cannabis" trimmer would seem to reflect or at least suggest its potential use in trimming marihuana cannabis as well), in my view it is simply inaccurate to say there was no basis for D.C. Crawford's indicated belief that the device was capable of being used to trim or process illicit cannabis marihuana as well as hemp. Moreover, its apparent use for that purpose in the recent past also was capable of suggesting a reasonable basis for believing that the same device was intended to be used for that same purpose again in the future; i.e., a basis for inferring that was a subject of the police monitored conversation in the Dodge Ram vehicle.

2. The ITO affidavit presented other information, independent of the relevant conversation, supporting an inference that Mr Kofman was involved in the drug trafficking operation, being carried on by Mr Kyle and his associates, to distribute significant quantities of illicit cannabis and cannabis-related products. That also was something a trained officer experience in drug investigations, assessing the import of the relevant monitored conversation, was entitled to factor into the inferences he was drawing when interpreting the relevant conversation.

iii. As noted above, complaints about an ITO affiant's inferences afford no basis for cross-examination.

iv. In my view, the defence was able to advance such arguments about how the relevant monitored conversation should be properly interpreted, (particularly in light of evidence that a license authorized the production/cultivation of industrial hemp at the Waterford property), without cross-examination of D.C. Crawford in that regard.

d. Failure to Include Surveillance on Specified Dates

i. During the course of oral submissions, defence counsel submitted that, as there were occasions described in the ITO affidavit wherein observed activities were described or characterized as nefarious, it would be appropriate for her to elicit, via desired cross-examination, confirmation that the police had conducted surveillance in relation to Mr Kofman on eight other dates when nothing nefarious was observed.

ii. In my view, there was no reasonable likelihood that defence counsel's proposed cross-examination in that regard would elicit testimony of any value to the issues I would be called upon to decide in relation to the accused's application, particularly insofar as the adequacy of information set forth in the ITO affidavit was concerned; i.e., in terms of providing reasonable grounds for believing that that the statutory requirements of section 87 of the CA had been satisfied. Without limiting the generality of the foregoing:

1. An ITO affiant has a duty to make full, frank and fair disclosure of all material facts, which includes the duty not to omit material facts.

2. It nevertheless is well established that an ITO affidavit is not a Crown brief, and need not set forth every single step taken by police during the course of an investigation.

3. Nor, in my view, are police observations of non-criminal activity on particular occasions generally regarded as material facts vis-à-vis a determination of the adequacy of proffered evidence relied upon in support of a suggested reasonable belief in the existence of criminal activity on other occasions. The simple reality is that criminal activity may not be constant, and frequently is not constant; i.e., insofar as those engaging in crime may do so on certain days but not others.

4. In my view, this also was not one of those rare situations in which the ITO affiant's duty to provide full and fair disclosure entailed a positive duty to "negative something unseen", in the sense of positively confirming that Mr Kofman, during the course of police surveillance, was observed doing nothing criminal on occasions other than those addressed in the ITO affidavit. To the contrary, I think that was implicit, and/or something capable of being sensible inferred from, the affidavit's reference to specific instances of perceived indications of illicit activity noted during the course of surveillance. Certainly, there was no suggestion in the ITO affidavit that Mr Kofman was the subject of surveillance only on those specified occasions, and/or that such perceived indications of illicit activity were observed each and every time Mr Kofman was under surveillance. The mentioning of such "non-facts", (i.e., the absence of any observations of perceived nefarious activity by Mr Kofman on the other dates identified by defence counsel in the request for leave to cross-examine), would not have undercut the reasonable grounds for belief in satisfaction of the preconditions for issuing a warrant, based on what was said to have been observed nefarious activity on the various occasions described in the ITO affidavit.

5. In any event, it was clear on the face of the ITO affidavit that D.C. Crawford had omitted reference to such additional dates of surveillance, even though the defence had information indicating that such additional surveillance had taken place. To the extent the defence contemplated attacking the validity of the challenged warrants on the basis of such an omission, it had the ability to do so without cross-examining D.C. Crawford in that regard. Such cross-examination was simply unnecessary.

e. Failure to Be Full, Frank and Fair in Paragraphs 180 and 436

i. For ease of reference, paragraph 180 of the ITO affidavit sworn by D.C. Crawford read in its entirety, (including its indicated "Affiant Note"), with original non-italicized, italicized, non-emboldened and/or emboldened text, as follows:

Ryan Kyle exited 2250 Blackwater Road, London while carrying a black tote and placed it in his Dodge Ram. He then travelled to Leon Kofman's residence at 71-1500 Richmond Street, London. Approximately three minutes later he departed, and travelled to Brampton.

Affiant Note: I believe that Ryan Kyle transported the items from apartment 329-2250 Blackwater Road, London to Leon Kofman at 71-1500 Richmond Street.

ii. For ease of reference, paragraph 436 of the ITO affidavit sworn by D.C. Crawford read in its entirety as follows:

On July 24, 2021, Ryan Kyle attended Leon Kofman's residence of 71-1500 Richmond Street, London and received three boxes. One of the boxes appeared to an Amazon box. Ryan Kyle later carried that box into condominium 1706 at 695 Richmond Street, London. A general warrant for covert entry was later executed at the condominium, and an Amazon box matching the same general size of the one obtained on July 24th 2021 was found inside of the condominium. The box contained sheets of cannabis resin.

iii. During the course of oral submissions, defence counsel clarified and confirmed a desire to challenge the reasonableness of the stated belief set forth in paragraph 180 of the ITO affidavit. In particular, contemplated cross-examination of D.C. Crawford in that regard would include questions suggesting that the contents of the surveillance report relating to events observed on August 16, 2021, and a photo included therein, did not provide a sufficient basis for the drawing of a reasonable inference that Mr Kyle actually had transported illicit cannabis from the Blackwater property to Mr Kofman at his residence; e.g., insofar as there was said to be no mention in the surveillance report specifically indicating that Mr Kyle brought a black tote into Mr Kofman's residence, (despite an indication that Mr Kyle had been observed entering that residence), and therefore supposedly "no basis" for the stated belief of D.C. Crawford in that regard. However:

1. As emphasized by Crown counsel, the indicated premise of defence counsel's contemplated cross-examination in that regard arguably was incomplete and therefore inaccurate on the face of the ITO affidavit; i.e., insofar as it wrongly suggested that the information relied upon by D.C. Crawford in forming his stated belief relating to events on the day in question was limited to visual surveillance of Mr Kyle, and therefore what may or may not have been detailed in the report corresponding to that visual surveillance. In particular, as indicated by D.C. Crawford at paragraph 323 of his ITO affidavit, the police, through use of an authorized video and audio installed at the Blackwater property, also had monitored Mr Kyle's participation in a cell phone conversation with an unidentified male on the occasion in question; a conversation wherein Mr Kyle agreed to bring illicit cannabis products to the unidentified male in exchange for $500.00, and indicated that he (Mr Kyle) would be there shortly. Mr Kyle thereafter travelled from 2250 Blackwater directly to Mr Kofman's residence, where Mr Kyle stopped for only three minutes. As noted above, a trained police officer such as D.C. Crawford is entitled to draw inferences based on such information, and make deductions based on his experience; experience which, in this case, included extensive familiarity with drug investigations.

2. In my view, however, the more fundamental objection to the contemplated cross-examination of D.C. Crawford in relation to paragraph 180 of the ITO affidavit was that it essentially reflected a defence quarrel with the detective's inference stated therein; i.e., a dispute as to whether it was reasonable for D.C. Crawford to draw that stated inference, based on the essentially undisputed underlying facts set forth in his affidavit. As noted above, such complaints about an affiant's inferences afford no basis for cross-examination.

iv. During the course of oral submissions, defence counsel clarified and confirmed a desire to challenge the manner in which D.C. Crawford presented the information set forth in paragraph 436 of the ITO affidavit. In particular, it was said that D.C. Crawford was said to have characterized and presented such information in a way that was unfair; e.g., by unreasonably suggesting, in the absence of a sufficiently close or proximate temporal connection, that the particular box located in the relevant 695 Richmond Street condominium during execution of a general warrant permitting covert police entry therein, which was found to contain sheets of cannabis resin, was the same box that police had seen Mr Kyle transport from Mr Kofman's residence to that Richmond Street condominium on July 24, 2021. Defence counsel expressed a desire to question D.C. Crawford about that suggested unfair characterization or impression, given the time that had elapsed between the observations made on July 24, 2021, and the next covert entry made thereafter on August 16, 2021, noted earlier in the ITO affidavit; e.g., at paragraph 62. However;

1. In my view, such contemplated cross-examination once again essentially reflected another defence quarrel with an inference being drawn by D.C. Crawford, (stated implicitly if not explicitly in paragraph 430), based on underlying primary facts not in dispute, that the box that was seen being transported by Mr Kyle from Mr Kofman's residence to the condominium at 695 Richmond Street on July 24, 2021, and the box thereafter located in that condominium and found to contain cannabis resin, during the subsequent covert entry by police, were one and the same; an inference lending support, (along with other considerations), to D.C. Crawford's further inference, stated at paragraph 440 of the ITO affidavit, that Mr Kofman was supplying Mr Kyle with cannabis resin from Mr Kofman's residence.

2. Again, such complaints about an affiant's inferences, based on primary facts in respect of which there is no dispute, afford no basis for cross-examination. Defence counsel had the ability to make submissions about the reasonableness of that inference in any event. Cross-examination in that regard was unnecessary.

Conclusion

[16] For those indicated reasons, I made the determinations outlined above regarding the requests for leave to cross-examine D.C. Crawford in relation to the information provided to obtain the impugned search warrants that were issued in this case.

Justice I.F. Leach

Date: July 28, 2025

Footnotes

[1] As noted in my other endorsement, it was clarified and confirmed by defence counsel during the course of oral submissions that the alleged violation of Mr Kofman's section 9 Charter rights was a suggested concomitant of the alleged section 8 Charter violations, and therefore dependent on the same arguments and analysis offered in support of the alleged section 8 Charter violations. In other words, the arrest of Mr Kofman was said to be arbitrary and unlawful, and a breach of Mr Kofman's section 9 Charter rights, only because it was carried out as part of the ostensibly authorized searches of the Waterford property and Mr Kofman's residence, and/or was based upon evidence discovered during execution of the search warrants which were said to be unlawful. There was no suggestion of a section 9 Charter breach existing independently of the alleged section 8 Charter breaches. To the contrary, defence counsel confirmed, when asked, that the "section 9" aspects of the accused's application were entirely contingent on the outcome of the "section 8" issues; i.e., that success or failure in that regard would turn on whether or not the accused's "section 8" arguments met with success or failure.

[2] See R. v. Garofoli, [1990] 2 S.C.R. 1421, at p.1465; and R. v. Victoria, 2018 ONCA 69, [2018] O.J. No. 710 (C.A.), at p.1465.

[3] See R. v. Garofoli, supra, at p.1465; and R. v. Victoria, supra, at paragraphs 66, 74 and 81.

[4] See R. v. Garofoli, supra, at p.1465; R. v. Green, 2015 ONCA 579, at paragraphs 41-43; R. v. Bennett, 2017 ONCA 780, at paragraph 53; and R. v. Victoria, supra, at paragraph 74. In that regard, s.87(1) of the CA reads as follows:

87. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that any of the following is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for it and to seize it:

(a) cannabis in respect of which this Act has been contravened;

(b) anything in which cannabis in respect of which this Act has been contravened is contained or concealed;

(c) offence-related property; or

(d) anything that will afford evidence in respect of an offence under this Act or an offence, in whole or in part, in relation to a contravention of this Act, under section 354 [possession of property obtained by crime] or 462.1 [now repealed] of the Criminal Code.

[5] See R. v. Patten, [2019] O.J. No. 6578 (S.C.J.), at paragraph 11.

[6] See R. v. Victoria, supra, at paragraph 76.

[7] See R. v. Patten, supra, at paragraph 10.

[8] As discussed in more detail in the companion endorsement cited above, evidence that the affiant knew or ought to have known that certain content of the ITO was false, inaccurate, or misleading typically will be "excised" from the ITO when determining whether it was lawfully issued. If there is additional evidence that the affiant knew or ought to have known was something required for full and frank disclosure, it notionally should be added back to the content of the ITO, thereby "amplifying" its content. After excision and amplification is complete, the reviewing judge determines whether, based on the "corrected" ITO, there is a basis upon which the authorizing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place. See World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207; and R. v. Phan, 2020 ONCA 298, [2020] O.J. No. 2113 (C.A.), at paragraph 52. However, other factors may be taken into account when arriving at that assessment. In particular, there is a residual discretion to set aside an otherwise valid authorization, (i.e., even where sufficient reliable information remains, after excision and amplification, upon which the authorizing judge could have granted the search and seizure authority), where the reviewing judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search and seizure authority; e.g., through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. Misleading statements made to obtain a warrant, or a failure to make full and fair disclosure in an ITO affidavit – depending on the nature and severity of the faults – may provide a basis for challenging the decision to grant a warrant. However, the standard to invoke that discretion is high, and requires "subversion" in the nature of undermining, corrupting, weakening, destroying or disrupting the system or process; e.g., conduct tantamount to an abuse of process. See R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Nguyen, 2011 ONCA 465, at paragraph 23; R. v. Paryniuk, 2017 ONCA 87, at paragraphs 69-70 and 74; and R. v. Phan, supra, at paragraphs 54-55.

[9] See R. v. Garofoli, supra, at p.1465; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paragraph 40; and R. v. Victoria, supra, at paragraphs 76-77 and 79. Having regard to the court's residual discretion to set aside an otherwise valid authorization, where the reviewing judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search and seizure authority, the threshold test for granting leave to cross-examine essentially requires an accused to demonstrate "a threshold factual basis … raising a reasonable likelihood that cross-examination will produce probative evidence tending to discredit a material precondition to the authorization being granted or tending to show significant police misconduct in securing the search order". See R. v. Imam, [2012] O.J. No. 6543 (O.C.J.), cited with approval in R. v. Phan, supra, at paragraph 68.

[10] See R. v. Lising, supra, at paragraph 41; R. v. Victoria, supra, at paragraphs 80 and 85; and R. v. Phan, supra, at paragraphs 51 and 67.

[11] See R. v. Phan, supra, at paragraph 51.

[12] See World Bank Group v. Wallace, supra, at paragraphs 122-123; and R. v. Phan, supra, at paragraph 51.

[13] See World Bank Group v. Wallace, supra, at paragraphs 122-123; and R. v. Phan, supra, at paragraph 51.

[14] See R. v. Patten, supra, at paragraph 12.

[15] Ibid., at paragraph 15.

[16] See R. v. Phan, supra, at paragraphs 68 and 72.

[17] See R. v. Araujo, supra, at paragraph 46; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paragraphs 44, 55 and 58-60; and R. v. Nguyen, supra, at paragraphs 48 and 51.

[18] See R. v. Nguyen, supra, at paragraph 55.

[19] Ibid., at paragraphs 50-51.

[20] See R. v. Patten, supra, at paragraph 14.

[21] Ibid., at paragraph 30.

[22] See R. v. Victoria, supra, at paragraph 85.

[23] See R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.), at sub-paragraph 68(6), and the authorities cited therein.

[24] See R. v. Garofoli, supra, at p.1465; and R. v. Phan, supra, at paragraph 66.