R. v. Clinton Wilson, 2026 ONSC 1039
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Clinton Wilson
BEFORE: Justice I.F. Leach
COUNSEL: Cara Douglas, for the Crown
Ron Ellis and Stephen Troyer, for the accused
HEARD: October 23, 2025
ENDORSEMENT
Introduction
1This endorsement focuses on a request by the accused in this proceeding for an order granting his counsel leave to cross-examine the affiant of three affidavits sequentially sworn to provide information to obtain, (in corresponding sequence), three judicial authorizations:
a. a production order issued pursuant to s.487.014 of the Criminal Code of Canada, (“the Code”), relating to documents in the possession of an internet service provider;
b. a search warrant issued pursuant to s.487.01 of the Code, authorizing the police to search the dwelling-house or residence of the accused; and
c. a search warrant issues pursuant to s.487.01 of the Code authorizing the police to search various electronic devices located and seized during execution of the search warrant issued in relation to the accused’s dwelling-house or residence.
Procedural overview
2The accused, Clinton Wilson, is charged with seven offences contrary to various provisions of the Code. In particular, Mr Wilson is charged with:
a. one count of possession of child pornography, contrary to s.163.1(4) of the Code;
b. one count of accessing child pornography, contrary to s.163.1(4.1) of the Code;
c. one count of making child pornography, contrary to s.163.1(2) of the Code;
d. one count of transmitting child pornography, contrary to s.163.1(3) of the Code;
e. one count of child-luring contrary to s.172.1 of the Code by engaging in telecommunication with a person believed to be under the age of 18 for the purpose of facilitating the commission of a child pornography offence under s.163.1 of the Code;
f. one count of child-luring contrary to s.172.1 of the Code of the Code by engaging in telecommunication with a person believed to be under the age of 16 for the purpose of facilitating the commission of an invitation to sexual touching offence under s.152 of the Code; and
g. one count of child-luring contrary to s.172.1 of the Code by engaging in telecommunication with a person believed to be under the age of 16 for the purpose of facilitating the commission of a sexual interference offence under s.151 of the Code.
3Mr Wilson has elected to have the charges tried by a judge alone in this court.
4In advance of that trial, the accused also has brought an application, pursuant to section 24 of the Canadian Charter of Rights and Freedoms, (“the Charter”), seeking to have certain evidence excluded on the basis of alleged contraventions of rights guaranteed to him pursuant to the Charter, including the section 8 right “to be secure from unreasonable search and seizure”; i.e., an application known in the vernacular as a “Garofoli application”, insofar as such applications were the subject of extended discussion by the Supreme Court of Canada in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
5In particular, those alleged contraventions include claims that the following judicial authorizations were invalid, such that actions taken pursuant to them effectively were unwarranted and unlawful searches that violated the section 8 rights of the accused:
a. a “Production Order for Documents” issued by Justice of the Peace Emma Sims on July 31, 2023, pursuant to s.487.014 of the Code, whereby Rogers Communications was obliged to provide documented information in its possession relating to, inter alia: a specified Internet Protocol address, or “IP address”; information relating to the subscriber of that address on May 16, 2023, including name and address information; current address information for the subscriber or subscribers of that specified IP address; information concerning the modem(s) and router(s) associated with that specified address, used on May 16, 2023; and the date on which the specified IP address was first assigned to the subscriber(s) and date(s) that the IP address was changed, if no longer assigned to the same customer or customers;
b. a search warrant issued by Justice of the Peace R.M. Seneshen on August 22, 2023, pursuant to s.487 of the Code, whereby the police were authorized to search, (between specified hours on August 23, 2023), a specified address on Cherokee Road here in the city of London, (i.e., the personal residence of the accused), in order to look for, seize and turn over to the Digital Forensic Unit of the London Police Service for analysis to locate evidence, (the parameters of which were described by specified terms and conditions), items that included, inter alia: any computer systems(s) and data storage device(s) which could store the evidence listed within the parameters of those specified terms and conditions; any written documentation containing computer passwords; any documentation pertaining to the occupants of the residence and their control of the computer equipment located therein; 10 specified “Apple” devices; and a specified modem; and
c. a further search warrant issued by Justice of the Peace Daniel Byskal on August 23, 2023, authorizing the police to search, (via analysis to be carried out by the Digital Forensic Unit of the London Police Service, between specified hours on August 23, 2023), the content of eight specified electronic devices located and seized by the police from the accused’s residence earlier that day, pursuant to execution of the search warrant described in the preceding sub-paragraph.
6In particular, the defence contends that the relevant production order and search warrants were issued on the basis of insufficient grounds set forth in the relevant underlying affidavits submitting information to obtain those judicial authorization, (i.e., the relevant “ITO” affidavits)1, sworn by Constable Jordan Lant of the London Police Service, and presented to the aforesaid justices of the peace who reviewed that information before issuing the relevant production order and search warrants.
7On or about September 24, 2025, counsel for the accused delivered a notice of application seeking an order granting leave to cross-examine Constable Lant, (during subsequent hearing and argument of the accused’s Garofoli application0, in relation to his three ITO affidavits. In that regard:
a. The notice of application submitted that “the proposed areas of cross-examination” were necessary for the accused to make full answer and defence; e.g., insofar as they were said to “have a tendency to discredit the existence of reasonable and probable grounds” for the aforesaid judicial authorizations. However, the notice of application itself included no indication of what those “proposed areas of cross-examination” would be.
b. In an “Applicant’s Factum” apparently dated and delivered the same day as the aforesaid notice of application, (and referred to in the notice), counsel for the accused nevertheless proposed three areas of cross-examination in that regard; areas which will be outlined in more detail once additional context has been provided to make the proposals more understandable.
c. Although the notice of application referred to a “Book of Documents” to be filed on behalf of the accused, no such book of documents had been filed by the time of the hearing before me; i.e., with counsel for the accused indicating a preference to simply incorporate references to such documents in the factum filed on behalf of the accused. However, counsel for the accused acknowledged that the relevant underlying documentation upon which the accused was relying had been included in the responding application record that had been delivered by the Crown; a record which was then complimented by counsel for the accused delivering a largely duplicative “Applicant’s Book of Documents” during the course of oral submissions.2 At the same time, counsel for the accused electronically supplied Crown counsel and the court with a Microsoft “Excel” spreadsheet containing additional information, (described in more detail below), but emphasized that the only portions thereof to which counsel intended to refer had been incorporated into the defence factum in any event.
d. Although the notice of application also referred to a “Book of Authorities” to be filed on behalf of the accused, no such book of authorities was submitted. In that regard, counsel for the accused once again indicated a preference for quoting/incorporating relied upon passages from a number of authorities directly into the factum filed on behalf of the accused.
e. For its part, the Crown counsel filed a “Crown Application Record”, as noted above, which included copies of the relevant documents upon which both parties relied, (including but not limited to copies of the three relevant ITOs and resulting judicial authorizations), as well as a “Respondent’s Factum” and “Respondent’s Book of Authorities”. The latter included not only various appellate decisions from the Supreme Court of Canada and our Court of Appeal, (some of which were cited and relied upon by defence counsel as well), but a decision rendered by Justice Orsini, (of the Ontario Court of Justice), during the “discovery preliminary hearing” held in relation to this matter; a decision which denied a request by defence counsel to cross-examination Constable Lant on his affidavits during that preliminary hearing; i.e., a request known in the vernacular as a “Dawson application”.
8The defence request for leave to cross-examine Constable Lant, (opposed by the Crown), was the subject of fulsome argument before me on October 23, 2025, at which time I reserved my decision in relation to the request.
9For the reasons that follow, the request for leave to cross-examine is denied.
Further background
10In providing the further background that follows, for the sake of context, it should be emphasized that my comments herein are not intended to represent final determinations of fact in relation to the underlying Charter application.
11Nor is the background information that follows by any means intended to provide an exhaustive summary of all the information and evidence presented for my consideration, in relation to the accused’s request for leave to cross-examine.
12In particular, while I had regard to all of that information and evidence, I think more pertinent aspects of the background indications to the request for leave to cross-examine generally may be summarized as follows:
a. Deborah Monahan is a sworn law enforcement officer in the state of New York, and employed by the Rockland County District Attorney’s office. She works in an undercover capacity, having received training in undercover operations and techniques that included 40 hours of “hands-on” techniques leading to certification for communicating “online” with potential predators, as well as further training focused on child exploitation and enhanced skills related to such online “chatting”. Based on her training and knowledge of such matters, Officer Monahan was aware that certain online “chat rooms”, including a social media platform known as “Chat IW”3, are used by adults to engage in sexual activity with minors.
b. On May 16, 2023, Officer Monahan embarked on a proactive online investigation into adults seeking to engage in sexual activities with minors utilizing the Chat IW platform. In particular, Officer Monahan entered the Chat IW platform while using another screen recording application, (known as “Camtasia”), to record her chats for evidentiary purposes. In doing so, she posed as a 14-year-old girl named “Shannon” with vulnerabilities; i.e., as a teenage girl of that age living with her aunt, (because her father was absent and her mother in jail for drug-related offences), and home alone while her aunt was away at work. Officer Monahan deliberately used that cover story because, based on her training and experience, online predators tend to target minors whose families appear dysfunctional; i.e., as such predators perceive that such vulnerabilities may be used to their benefit.
c. While on the Chat IW platform on May 16, 2023, posing as the aforesaid “Shannon” but with an initially indicated profile age of 18, Officer Monahan was contacted by someone on the platform identifying himself as “JimR”, and a resident of the United States, with an indicated profile age of 54. Provided information includes specific details and quotes describing the messages that were then exchanged back and forth between “JimR” and “Shannon” via the Chat IW platform, which I think it unnecessary to replicate in full detail here. For present purposes, the messages included:
i. “JimR” asking “Shannon” if she was “into older” men, and how old she was;
ii. “Shannon” indicating that she was “actually 14”;
iii. “JimR” indicating that he actually was 52, liked “small girls”, liked her name “Shannon”, and wanted “Shannon” to “tell Daddy” about her various physical attributes, (e.g., hair, eyes, “lil body” and bra size), whether she was wearing a bra, whether she was in her room, whether she was alone, and whether she wanted to “play with daddy”; and
iv. “JimR” asking “Shannon” to create an account on “Wickr”4 or “Jitsi”5, while explaining to “Shannon” that “Wickr” was an “app” that could be downloaded, allowing for voice and “cam” communications, once one created an account by making up a username and password.
d. Complying with the latter request from “JimR” on Chat IW, Officer Monahan then downloaded the “Wickr” app, created an account on Wickr with the username “horsegirl823”, and sent “JimR” a further message via Chat IW providing “JimR” with her Wickr username. Officer Monahan then received a request on Wickr from someone with the Wickr username “Hardguy777”, saying “Hi Shannon is this u?”, at which point further communications between Officer Monahan and the person she was communicating thereafter proceeded via use of the Wickr instant messaging app.
e. Provided information includes specific details and quotes describing the messages that were then exchanged back and forth between “Hardguy777” and “horsegirl823” via the Wickr instant messaging app, which I think it unnecessary to replicate in full detail here. For present purposes, the messages exchanged included the following:
i. “Hardguy777” complimenting “Shannon” on doing a “good job” in creating a Wickr account, as Wickr was “more private and way faster”;
ii. “Hardguy777” asking “horsegirl823” (Officer Monahan) to send “pics” of herself;
iii. “horsegirl823” sending “Hardguy777” a completely non-sexual and fully clothed photo of herself, (i.e., Officer Monahan), framed from the shoulders up, that had been digitally altered by Officer Monahan, (through use of the application “FaceApp”), to make herself look approximately 14 years of age;
iv. “Hardguy 777” telling “Shannon” how he thought she was pretty and liked her hair, and telling her to show him her “lil body”.
f. Still using the Wickr instant messaging app, “Hardguy777” then employed the app’s “call feature” to initiate a voice conversation with Officer Monahan, starting at 1:24pm (EST) on May 16, 2023; a conversation in respect of which the words spoken by “Hardguy777” also were recorded by the “Camtasia” screen capture application Office Monahan had continued to use after the communications had transitioned from Chat IW to Wickr; i.e., such that the ensuing chat was captured on a VLC media player. Provided information includes specific details and quotes describing the voice conversation that followed between “Hardguy777” and “horsegirl823” via the Wickr instant messaging app, which I think it unnecessary to replicate in full detail here. For present purposes, aspects of the conversation exchanged included the following:
i. the “Hardguy777” caller was a male who initiated the conversation by saying “Hi Shannon”; i.e., the name originally used by Officer Monahan on Chat IW;
ii. the “Hardguy777” caller asked the female he was speaking with, (i.e., Officer Monahan), if she was alone and in her room, and what she was wearing, before asking her to pretend that he was in her room and to talk about what would happen if he was there with her, and telling her not to wear a bra;
iii. the “Hardguy777” caller then indicated to the female he was speaking with, (Officer Monahan), that he was “getting excited” during the call, before:
telling her to climb on his lap and straddle him;
starting to moan;
asking if he could smell her hair and kiss her cheek;
making “kissing noise”, while asking if he could “French” her, and saying “Kiss me Shannon”;
telling her to “open for daddy”;
asking/telling her to call him “daddy”, because it made him “so hard”, and for her to say “Kiss me daddy” and “I’m 14”;
saying “Suck on it Shannon”;
indicating that he wanted to “suck on her boobs”, and asking what size they were;
asking if she could “show him” her “boobs” and “little face”, and turn her camera on;
indicating that he thought her nipples “would get hard”, and wondered what colour they were; and
then ended the call abruptly.
iv. Officer Monahan, (still posing as the aforesaid “Shannon” and using her “horsegirl823” user name on Wickr, then messaged “Hardguy777” again via the Wickr instant messaging app, asking him what had happened because he had ended the conversation. Provided information includes specific details of the further messages that were then exchanged between “Hardguy777” and “horsegirl823” via the Wickr instant messaging app, which I think it unnecessary to replicate in full detail here. For present purposes, aspects of those exchanged messages included the following:
“Hardguy777” indicated that she had “been great”, that he “came”, and “had to go clean [himself] up”, and “really liked” her voice; and
in response to being asked by “horsegirl823” if he had “used” her, “Hardguy777” indicated that they could “maybe … talk tomorrow”, as he had to go, but asked if she was alone the following day, and if she would do “cam”, at which point “horsegirl823” told him she didn’t want to talk to him and their communication stopped.
g. It was emphasized by Officer Monahan that, throughout the above communications with “JimR”/“Hardguy777”, she never deviated from her assumed persona or broke character, from which she inferred that “JimR”/ “Hardguy777” never thought her to be anyone else but “Shannon”, who was 14 years old.
h. Later the same day, (i.e., May 16, 2023), Officer Monahan shared the screen recording and call described above with Homeland Security Investigations (“HSI”) Special Agent Sara Seeley, of the “SAC New York” office of HSI; i.e., an office of the United States Department of Homeland Security or “DHS”.
i. On May 30, 2023, Special Agent Seeley sent the legal department of Wickr Inc., (based in San Francisco, California), a document alternatively described as a Customs “summons” and “subpoena” issued pursuant to 19 U.S.C., s.1509, requiring Wickr Inc. to produce specified records by 8:00am on “6/8/23”; i.e., June 8, 2023. The document indicated, inter alia, that it was being sent “in regard to an investigation involving Child Exploitation and/or transmission of child pornography”, and required production of all available subscriber information, (including numerous specified particulars if available), relating to the Wickr username “Hardguy777”.
j. On June 6, 2023, Wickr Inc. responded by sending Special Agent Seeley business records including “Account Registration Information” relating to Wickr ID “Hardguy777”. That provided information included, inter alia, device information associated with the Wickr “Hardguy777” account, including indications that the relevant account holder was using “iOS”, (an operating system used by mobile devices manufactured by Apple Inc.), as well as information about specific “push tokens”6 being used in that regard.
k. On June 14, 2023, Special Agent Seeley, possessed of the above information supplied by Wickr Inc., (i.e., indicating that the person employing the username “Hardguy777” on Wickr was using Apple’s iOS software, via specified push tokens), then sent a further Customs “summons” or “subpoena” to Apple Inc., (based in Cupertino, California), requiring Apple Inc. to produce specified records by 8:00am on “6/13/23”; i.e., June 13, 2023. The document indicated, inter alia, that it was being sent “in regard to an investigation involving Child Exploitation and/or transmission of child pornography”, and required production of “any and all information” associated with specified push tokens, (i.e., the push tokens that had been identified in the information provided by Wickr Inc. in relation to its user “Hardguy777”), “including but not limited to subscriber information, IP addresses7 associated with the account, and payment information”.
l. In response, Apple Inc. provided Special Agent Seeley with corresponding account subscriber information indicating, inter alia, that the relevant account subscriber was Clint Wilson, (i.e., the accused), with a specified address on Cherokee Road here in the city of London, as well as a specified phone number, email address and credit card associated with the subscriber. Additional information provided by Apple Inc. included IP addresses used by Mr Wilson, devices associated with his account, and purchases and software updates made via his account. The results provided included a large range of data for the period from May 19, 2022, through to June 14, 2023, in a specifically titled Microsoft Excel document format; i.e., the Microsoft Excel document referred to earlier in these reasons.
m. On June 28, 2023, Officer Monahan provided Special Agent Seeley with a copy of the screen recording of her chats with “JimR” (on Chat IW) and “Hardguy777” (on Wickr).
n. The Rockland County District Attorney’s Office of New York and the Department of Homeland Security of the United States thereafter provided the information and documentation obtained via their investigation to the London Police Service, (the “LPS”), requesting LPS assistance in relation to appropriate follow-up investigation; i.e., given the indications that the person suspected of engaging in child exploitation and child pornography via the internet was located here in the city of London, and/or had done so from a location here in the city of London. In that regard:
i. Constable Lant is a member of the LPS, and has been a peace officer in Ontario since December of 2015. At all material times described herein, he has been assigned to the Internet Child Exploitation Unit of the Criminal Investigation Division of the LPS.
ii. On July 27, 2023, Constable Lant was assigned to work on a “joint investigation” with the Rockland County District Attorney’s Office of New York (the “RCDA”) and the Department of Homeland Security of the United States (the “DHS”) in relation to this matter.
iii. The RCDA and DHS provided the LPS and Constable Lant with copies of documentation they had prepared and/or compiled in relation to this matter, outlining their investigative actions and the information they had obtained as a result of that investigation. Those documents, then reviewed by Constable Lant, included:
a Microsoft Word document titled “statement Monahan”, which Constable Lant learned was the typed statement of Officer Monahan, providing information, summarized above, concerning her investigative actions and interactions with the suspect who, on May 16, 2023, had used the names “JimR” on Chat IW and “Hardguy777” on Wickr to communicate with Officer Monahan, posing as a 14-year-old girl;
copies of the summons/subpoena documentation noted above;
reports authored by HSI Special Agent Seeley regarding those summons/subpoenas and the information/documentation received in response to them, including the data provided by Apple Inc. in Microsoft Excel document format; and
another document titled “crim prof Clinton WILSON”, which included information for Mr Wilson such as his name, date of birth, phone number, email address, residential address in the United States, (in the state of Florida), residential address in Canada, (i.e., the specified Cherokee Road address here in the city of London), and an indication that Mr Wilson was a dual citizen of Canada and the United States of America.
iv. In his ITO affidavits, Constable Lant provided a detailed outline of the above documentation and information, and indicated/confirmed that he was able to understand the investigative actions that had been undertaken, including those taken by Special Agent Seeley. Constable Lant also then broadly summarized those investigative actions as Special Agent Seeley:
starting with a review of the communications between Officer Monahan and the suspect on Chat IW and Wickr;
using a Customs summons/subpoena to obtain information from Wickr regarding the suspect’s “Hardguy777” account on Wickr;
using the information thus obtained from Wickr, (including the multiple unique Apple “push token” identifiers supplied by Wickr), to then obtain, from Apple Inc., (via a further Customs summons/subpoena), Apple’s subscriber information for the suspect, as well as other details about the suspect’s Apple account and devices, including a list of IP addresses used by the suspect, as well as a name and address here in London for the relevant account subscriber.
v. Constable Lant described how he then conducted his own independent review of the information provided by Apple Inc. to Special Agent Seeley. In that regard, Constable Lant explained that, having regard to the large amount of data provided by Apple Inc., he began by focusing his attention on the basic subscriber information provided and any log information dated between May 16, 2023, and May 17, 2023; i.e., the dates of the internet communications between Officer Monahan and the suspect identifying himself on Wickr as “Hardguy777”. By doing so, Constable Lant learned, inter alia:
that the basic subscriber information indicated that the subscriber was Clint Wilson, with a specified address on Cherokee Road here in London;
that the subscriber had conducted an update on one of the subscriber’s devices on May 16, 2023, at 8:17:22 (PST), utilizing a specified IP address consisting of 10 numerals ending in 110;
that although the information provided by Apple Inc. did not indicate which specific device of the subscriber was used during the aforesaid update conducted on May 16, 2023, it did indicate that Clint Wilson was the subscriber for the account that did the update, and that Clint Wilson also was listed as the customer for every device associated with the relevant Apple account; and
that the specified IP address ending in 110 had been used numerous times by the relevant Apple account dating as far back as May 19, 2022, suggesting that the subscriber was in the location the IP address was provided with, (i.e., the specified Cherokee Road address here in London), with a reasonable amount of consistency.
vi. Constable Lant also then conducted an open-source geo-location query for the IP address ending in 110, which confirmed that it was associated with an address here in London, Ontario, and that the relevant internet service provider for the IP address was Rogers Cable, also known as Rogers Communications.
vii. Constable Lant thereafter sent a “Jurisdiction Request” to Rogers Communications, requesting confirmation of the existence of data and basic subscriber information relating to the IP address ending in 110 used on May 16, 2023. In response, Rogers Communication confirmed the existence of that data, and that it would be preserved for one year.
o. On July 31, 2023, Constable Lant swore and submitted his ITO affidavit, noted earlier, relating to his request for a production order, addressed to Rogers Communications, for information/documentation relating to the IP address ending in 110. In his ITO affidavit, Constable Lant outlined, inter alia, the above investigation carried out by Officer Monahan at the RCDA and Special Agent Seeley at the DHS, the results of that investigation reviewed and relied upon by Constable Lant, and his own supplementary investigation, explaining the grounds for his stated reasonable belief that a direct nexus had been established between the IP address ending in 110 used on May 16, 2023, and the Wickr account used by “hardbuy777” that day to engage in the offensive conduct described above. Again, the requested production order was issued by Justice of the Peace Sims later the same day; i.e., on July 31, 2023.
p. On August 3, 2023, the LPS and Constable Lant received the results of the aforesaid production order from Rogers Communications. Those results included information confirming that the IP address ending in 110 was registered in the name of Clint Wilson, with the same specified address on Cherokee Road here in the city of London.
q. Based on the totality of information and documentation obtained via the joint investigation described above, (including the evidence supplied by Officer Monahan and Special Agent Seeley, the records obtained from Wickr Inc. and Apple Inc., and the information obtained from Rogers Communication), Constable Lant then sought and obtained, on August 22, 2023, (via a further ITO affidavit sworn and submitted that day), the search warrant issued by Justice of the Peace Seneshen and described above; i.e., a warrant authorizing a search of the accused’s specified Cherokee Road residence here in London the following day.
r. On August 23, 2023, members of the Internet Child Exploitation Unit of the LPS then executed the aforesaid search warrant at the specified address on Cherokee Road here in London, seizing a number of specified devices, including a cellular phone, computers, tablets and digital storage devices, (e.g., USBs and hard drives), that were transported to the LPS headquarters. Later the same day, Constable Lant swore and submitted a further ITO affidavit to seek and obtain an additional search warrant, (i.e., the search warrant issued by Justice of the Peace Byskal that day and described above), authorizing a search of the electronic devices that had been seized from the accused’s residence. During the ensuing review of the various devices, Detective Constable John Paul Loberto of the Internet Child Exploitation Unit of the LPS located 393 images and 66 videos meeting the definition of child pornography.
s. In response to being charged with the offences outlined above, the accused initially elected to be tried by a judge and jury in this court. However, the accused thereafter made a re-election to be tried, (as noted above), by a judge alone in this court.
t. In advance of the discovery preliminary hearing scheduled to take place in the Ontario Court of Justice, the accused sought leave to cross-examine Constable Lant, during that preliminary hearing, on his three ITO affidavits sworn to obtain the three corresponding judicial authorizations described above. On April 9, 2025, Justice Orsini indicated that the application, (i.e., the accused’s “Dawson application”), would be denied for reasons to follow. Those reasons thereafter were released on April 22, 2025, and subsequently included in the “Respondent’s Book of Authorities” submitted by the Crown in relation to the accused’s application for leave to cross-examine Constable Lant during the Garofoli application proceedings before me.
u. At the discovery preliminary hearing conducted in the Ontario Court of Justice on August 22, 2025, before Justice Orsini, Officer Monahan and Special Agent Seeley both testified, and both were cross-examined by counsel for the accused.
Proposed areas of cross-examination
13As noted earlier, the notice of application filed on the accused’s behalf, seeking leave to cross-examine Constable Lant on his three ITO affidavits in relation to the accused’s Garofoli application, did not specify any proposed areas of cross-examination in that regard.
14However, as also noted earlier, three proposed areas of cross-examination were identified, (albeit without concise precision, insofar as the factum employed four perfunctory titles/headings in that regard with each being followed by numerous paragraphs of submissions), in a defence factum apparently dated and delivered the same day as the aforesaid notice of application, and referred to in that notice. In that regard:
a. Counsel for the accused indicated a desire to cross-examine Constable Lant in relation to matters described under the heading “Past experience with the DHS, RCDA, and subpoenas/summons”. By way of further explanatory paragraphs of the factum in that regard, and oral submissions, counsel for the accused sought to explain that desire/request by indications that included the following:
i. It was emphasized that much of Constable Lant’s investigation was based on a review of the documents provided by the RCDA and DHS.
ii. It was submitted that, having regard to Supreme Court of Canada authority emphasizing the relevance of credibility of source information relied upon by an ITO affiant, cross-examination of Constable Lant was required to determine what information, if any, he had regarding the credibility or reliability of the RCDA and/or DHS; i.e., as his lack of such information, it was submitted, would tend to discredit the existence of reasonable and probable grounds to grant the judicial authorizations that were obtained.
iii. It also was submitted that, insofar as Constable Lant had relied on information obtained pursuant to summons/subpoena documents delivered to Wickr Inc. and Apple Inc. by Special Agent Seeley of the DHS, and Constable Lant had provided “no information about his understanding of American subpoenas/summons” or details of whether he was “familiar with the requisite processes or how to interpret such documents”, cross-examination of Constable Lant in relation to such matters was required; i.e., as his lack of such understanding or familiarity, it was submitted, would tend to discredit the existence of reasonable and probable grounds for Constable Lant to rely on such documents and/or the information obtained as a result of their use.
b. Counsel for the accused indicated a desire to cross-examine Constable Lant in relation to matters described under the heading “Monahan Statement”. By way of further explanatory paragraphs of the defence factum in that regard, and oral submissions, counsel for the accused sought to explain that desire/request by indications that included the following:
i. It was emphasized that, although Constable Lant’s sworn affidavit information included an indication that the document he had reviewed in that regard was titled “statement Monahan”, and that he had learned it was the typed statement of the undercover officer who started the investigation, the document itself did not include the author’s name or signature or any indicated date of the statement, and Constable Lant had not provided any information about his observations and concerns, (if any), in that regard.
ii. It was emphasized that Constable Lant relied upon the statement, despite its alleged “deficiencies” in that regard, without also being provided with additional evidence or documents of the described original communications, (e.g., by way of screen captures or transcripts), to provide the “full context” of the communications and/or permit confirmation that the “purported quotes” set forth in the statement were accurate.
iii. It was submitted that cross-examination of Constable Lant was required to determine whether he was “negligent or wilfully blind to the statement’s deficiencies”, as that too was said to be something that would discredit the existence of reasonable and probable grounds for issuing the judicial authorizations.
c. Finally, counsel for the accused indicated a desire to cross-examine Constable Lant in relation to matters described under the heading “Push Tokens, Apple devices, IP addresses”. By way of further explanatory paragraphs of the factum in that regard and oral submissions, counsel for the accused sought to explain the desire/request by indications that included the following:
i. It was emphasized that, in reviewing provided information about such matters, Constable Lant implicitly and explicitly had claimed to understand such information, and why it justified his belief that the information, (e.g., association of the Wickr account with push tokens, association of those push tokens with an Apple account and specified IP addresses associated with physical address information, and use of one of those IP addresses to conduct an update at the time of communications between “Hardguy777” and Officer Monahan), provided a demonstrable nexus between the user of the “Hardguy777” Wickr account and the residence to be searched.
ii. It was submitted that cross-examination was required to determine the extent of Constable Lant’s understanding of “the technologies” involved, and “how they work”, as any demonstrable lack of understanding in that regard, it was said, would tend to discredit the existence of reasonable and probable grounds for issuing of the judicial authorizations.
iii. As a related or subsidiary submission in that regard, it was emphasized that Constable Lant had focused on the IP address ending in 110, without noting or carrying out further investigation in relation to the other IP addresses included in the information provided by Apple Inc. and relayed to Constable Lant. It was said that those also were failings, on the part of Constable Lant, tending to discredit the existence of reasonable and probable grounds for issuing of the judicial authorizations.
15Before outlining my further reasons for denying the accused’s request for leave to cross-examine, I turn next to an overview of the law governing such requests.
General principles
16In that regard, general principles applicable to requests for leave to cross-examine, in relation to the information provided to obtain a judicial authorization for a search, and Garofoli applications, 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.8
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.9
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.10 Bald assertions that the cross-examination sought will or might elicit helpful information to the defence are not enough.11
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.12 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.13
e. The standard for leave allows only a narrow window for cross-examination, not because the test for is onerous, but because there is a similarly confined basis upon which the enabling authority, (e.g., an issued production order or 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,14 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.15
f. It also should 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.16 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.17
ii. An error or omission made by the affiant accordingly is not relevant if the affiant could not reasonably have known of it.18
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.19
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.20 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.21
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 to suggest the existence of criminal activity), 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.22
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.23
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.24
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, no 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.25
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.26
v. Moreover, where it is clear on the face of an ITO that certain information has been omitted, permitting an attack on the validity of the warrant based on the omission, cross-examination is unnecessary.27
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.28 It should also be remembered that a trained police officer is entitled to draw inferences, and make deductions based on experience.29
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.30
17With the particular background context of this matter and the above principles in mind, I turned to consideration of the particular areas of proposed cross-examination in respect of which leave was requested in this case.
Assessment
18Before providing my more specific reasons for denying the accused’s request for leave to cross-examine Constable Lant, I pause to note my rejection of general suggestions made by defence counsel, in the course of written and oral submissions, that the requirement to obtain leave to cross-examine in such situations and/or the threshold for granting such leave effectively should be relaxed in circumstances where the information provided by an ITO affiant for judicial review did not involve protection of any confidential informant identity. In that regard:
a. It was emphasized by counsel for the accused that the Supreme Court of Canada’s seminal decision in R. v. Garofoli, supra, involved an accused wanting to cross-examine an affiant regarding information received from such a confidential informant, and that the Supreme Court of Canada accordingly spoke at length about the protection of the identity of such informants; i.e., as an identified policy justification for the imposition of a requirement to obtain leave for cross-examination of an ITO affiant.
b. While it was acknowledged that the Supreme Court of Canada also made reference to concerns about “prolongation of proceedings”, as another policy justification for imposition of such a leave requirement, it was submitted that the Supreme Court of Canada was “much more brief” in that regard, in turn suggesting that the policy considerations for restricting cross-examination of ITO affiants were not as strong in cases, (such as this one), not involving confidential informants and concerns regarding protection of their identity.
c. With respect, in my view such submissions reflect a fundamental misreading of the Supreme Court of Canada’s decision in R. v. Garofoli, supra, and the multitude of subsequent decisions which have echoed and applied its principles, as far as the stated policy justifications for imposition of a requirement for leave to cross-examine an ITO affiant are concerned. Without limiting the generality of the foregoing:
i. There is a significant difference between a requirement that may or may not apply on a weighted assessment of how many criteria favouring its possible application may exist in a particular case, and a requirement that always applies for a number of underlying policy reasons that independently justify application of the requirement in all situations. In my view, a plain reading of R. v. Garofoli, supra, and other appellate authorities addressing the same issue, make it clear that the Supreme Court of Canada’s imposition of a leave requirement in relation to contemplated cross-examination of an ITO affiant falls within the latter category.
ii. In my view, there is nothing in the Supreme Court of Canada’s decision in R. v. Garofoli to suggest that the requirement to obtain leave to cross-examine an ITO affiant in relation to such Garofoli applications was subject to differential rather than universal application, or application with less force, depending on whether or not the case at hand involves confidential informants.31 Nor was I directed to any authority supporting or suggesting such an approach.
iii. To the contrary, in R. v. Garofoli, supra, the Supreme Court of Canada cited “protection of the identity of informants” and “the concern with respect to the prolongation of proceedings” as apparently co-existing and independent policy reasons for maintenance of reasonable limitations on the cross-examination of ITO affiants; i.e., via imposition of a requirement for leave to cross-examine in such circumstances.32
iv. Moreover, in its subsequent decision in R. v. Lising, supra, the Supreme Court of Canada expanded on its discussion of the latter policy concern, (i.e., regarding the unnecessary prolongation of proceedings), by emphasizing that the Garofoli leave requirement was “a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues”, and explaining why the parameters of relevance in the context of a Garofoli application were narrow; i.e., having regard to the confined basis on which a judicial authorization, such as a search warrant may be set aside.33 In my view, such fundamental considerations of relevance apply regardless of whether or not a case in respect of which a Garofoli application is brought involves confidential informants. In other words, evidence sought to be elicited via cross-examination of an ITO affiant that is unnecessary and therefore irrelevant to the narrow issues to be decided on a Garofoli application remains unnecessary and irrelevant regardless of whether or not a case involves confidential informants.
19By way of threshold comments, I also think it advisable to address, at least in passing, aspects of the written and oral submissions suggesting that leave to cross-examine Constable Lant on his ITO affidavits should be granted now should because of comments made by Justice Orsini in the course of denying the accused’s request for such leave, (i.e., denying the accused’s Dawson application), in the context of the discovery preliminary hearing held in relation to this matter. In that regard:
a. One of the factors identified and relied upon by Justice Orsini in denying the accused’s Dawson application, brought in regard to the discovery preliminary hearing held in relation to this matter, concerned the desirability of avoiding “prolixity”; a term which, in the context of addressing possible cross-examination of ITO affiants, the Supreme Court of Canada apparently regards as synonymous with unnecessary prolongation of proceedings.34
b. In particular, Justice Orsini said this at sub-paragraph 18(d) of his reasons: “As for prolixity, every Dawson application must be repeated at trial as a Garofoli application. Whatever the anticipated length of the leave argument and, if granted, the cross-examination, it is doubled by the redundant Dawson application.” Pointing to those remarks, and Justice Orsini’s decision to deny the accused leave to cross-examine Constable Lant at the discovery preliminary hearing, (i.e., to deny the accused’s “Dawson application”), counsel for the accused argued:
i. that implicit in such remarks was a necessary assumption that the request for leave to cross-examine Constable Lant would be granted in this context, (i.e., the Garofoli application proceedings before me), as there otherwise would be no redundancy resulting from the request for such leave also being granted at the preliminary hearing stage; and
ii. that failure to grant such leave at this stage of the proceedings would mean that Justice Orsini erred by referring to the accused’s Dawson application as redundant.
c. I reject such submissions for reasons that include the following:
i. In the present context, I self-evidently am not exercising any form of appellate jurisdiction in relation to the decision made by Justice Orsini to deny the accused’s Dawson application at the preliminary hearing stage.
ii. I also think it axiomatic that a judge of the Ontario Court of Justice lacks jurisdiction to bind, directly or indirectly, this court’s exercise of discretion as to whether or not leave to cross-examine an ITO affiant should be granted in relation to a Garofoli application brought by an accused before this court.
iii. With respect, I find the reasoning and supposed conclusion suggested by counsel for the accused to be fallacious, insofar as they ignore the obvious possibility that redundancy effectively may be avoided by similar but separate findings, at the preliminary hearing stage in the Ontario Court of Justice, and at this stage of the Garofoli application in this court, that it would be inappropriate, for other reasons, to grant the accused’s request for leave to cross-examine the relevant ITO affiant.
20The following sub-paragraphs outline my reasoning and determinations in specific relation to the areas of cross-examination proposed/requested by defence counsel:
a. As for the request for leave to cross-examine Constable Lant in relation to his “past experience with the DHS, RCDA and subpoenas/summons”:
i. Relying upon R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, counsel for the accused submitted that credibility of information being provided to an ITO affiant, along with the extent to which such information was compelling and corroborated, were extremely relevant to any determination of whether Constable Lant’s stated belief in the accuracy of such information was both honest and reasonable; i.e., the basis relied upon for issuing the judicial authorizations obtained by Constable Lant.35 That consideration, coupled with the reality that Constable Lant had relied extensively on the information provided to him by Officer Monahan at the RCDA and Special Agent Seeley at the DHS, was said to make cross-examination of Constable Lant’s information regarding the credibility and reliability of such sources, (or lack thereof), not only relevant but essential to determination of whether reasonable and probable grounds existed, in the sense required, for issuing the impugned judicial authorizations. In particular, it was argued that desired cross-examination confirming that Constable Lant may have lacked such credibility and reliability information relating to Officer Monahan and/or the RCDA, or Special Agent Seeley and/or the DHS, (given that none was mentioned in the relevant ITO affidavits), and “no prior experience or dealings with [those] other law enforcement services” in particular, would tend to discredit the existence of preconditions for valid judicial authorizations.
ii. Similarly, Constable Lant’s indicated reliance on the summons/subpoena documents used by Special Agent Seeley, to obtain information from Wickr Inc. and Apple Inc., was said to make cross-examination of his understanding of the employed American subpoena/summons process essential to a determination of whether he was “familiar with the requisite processes or how to interpret such documents”. In particular, it was argued that desired cross-examination confirming that Constable Lant may have lacked such understanding or familiarity, (given that neither was mentioned in the relevant ITO affidavits), and perhaps no appreciation that American law permitted use of the subpoena/summons documents employed by Special Agent Seeley without prior judicial review and authorization,36 also would tend to discredit the existence of preconditions for valid judicial authorizations pursuant to the law of Canada.
iii. I reject such arguments for reasons that include the following:
In my view, the suggestion that an ITO affiant must establish reasonable reliance on information supplied by other police officers through application and consideration of the three considerations highlighted in R. v. Debot, supra, is fundamentally inaccurate, and at odds with well-established legal principles. The “Debot criteria” clearly were intended to apply to information supplied by confidential informants whose identity required protection. They were not intended to apply to identified law enforcement officers who supply ITO affiants with information, (a separate and distinct category of evidence), and have not been applied in that manner.
To the contrary, as noted above, it is well-established law that ITO affiants, in the formation of an honest and reasonable belief in the existence of preconditions required for the issuing of a judicial authorization, are entitled to rely on the accuracy of information provided to them by other law enforcement officers without taking further steps to confirm the credibility and reliability of such information, in the absence of any indication that anything is amiss in that regard. In particular, at the risk of repetition:
a. in the absence of signs that other officers may be misleading an ITO affiant or omitting material information, such an ITO affiant need not conduct his or her own investigation to confirm the accuracy of information supplied to them by other police officers; and
b. where there is no demonstrated factual basis to indicate that an ITO affiant was aware of any impropriety in underlying reporting from other officers relied upon by the affiant, ignored signs of wrongdoing in that regard, or was wilfully blind to indications of any such impropriety, (i.e., where the accused fails to lead an evidentiary basis for the view that cross-examination has a reasonable likelihood of establishing that the ITO affiant knew or ought to have known that the information being supplied by other law enforcement officers was erroneous, false or misleading), cross-examination of an ITO affiant in relation to such matters generally should be denied.
- Such well-established principles have been accepted because they accord with sound policy and the public interest in terms of a practical and sensible approach to co-ordinated law enforcement. In that regard:
a. The alternative approach suggested by counsel for the accused effectively would render any ITO affiant, personally unfamiliar with the credibility and reliability of another law enforcement officer supplying the ITO affiant with information, incapable of relying on such supplied information in forming an honest and reasonable belief in the existence of preconditions for issuing of a judicial authorization until such time as the ITO affiant is able to make independent inquiries about such credibility or reliability, and/or carry out independent investigation to confirm the accuracy of the supplied information.
b. If such an alternative approach was adopted, underlying practical realities, (including finite time and resources preventing such independent inquiries and/or investigations by the ITO affiant), effectively would make it impossible, in most situations, for an ITO affiant to rely upon any information supplied by any officer, personally unfamiliar to the ITO affiant, employed by a different law enforcement agency, whether located in a geographically distant jurisdiction or perhaps one as close as a neighbouring community having a separate and independent police service.37
c. Such an alternative approach therefore clearly would frustrate effective coordinated law enforcement in an age where those engaged in criminal activity are not only capable of moving physically between different police jurisdictions with relative ease, via modern transport, but also frequently use the internet and other forms of telecommunication to victimize individuals in more distant locations.
- In an effort to avoid or limit such undesirable implications of the alternative approach being suggested by counsel for the accused, it was submitted that the law should at least limit permissible ITO affiant reliance on information supplied by another police officer, without the ITO affiant conducting adequate inquiries to obtain information about that other law enforcement officer’s credibility and reliability, and/or independent investigation to confirm the accuracy of information being supplied by that unfamiliar officer, (even in the absence of indications of any improprieties underlying such reporting), to circumstances where the other police officer supplying information to the ITO affiant is employed by a Canadian law enforcement agency; i.e., rather than the law enforcement agency of another country.38 However:
a. I was supplied with no authority to suggest any such distinction or limitation.
b. Apart from jingoism, there seems no logical basis for implicitly presuming credibility and reliability of all Canadian law enforcement officers, while effectively presuming lack of credibility and reliability of all law enforcement officers from other nations; i.e., in the absence of an ITO affiant making inquiries to obtain information about the credibility and reliability of a police officer from another nation, or carrying out independent investigation to confirm the accuracy of information being provided by a police officer from another nation.
c. The hurdles of time and resource limitations standing in the way of ITO affiants carrying out further credibility and reliability inquiries to ascertain the credibility and reliability of officers from other police services within Canada, and/or independent investigation to confirm the accuracy of information supplied by such officers, seem exponentially compounded and insurmountable in the international context; i.e., in relation to how ITO affiants would or could go about conducting such further credibility and reliability inquiries in relation to law enforcement officers from other nations, and/or independent investigation to confirm the accuracy of information being supplied by such law enforcement officers. Indeed, it seems difficult to imagine how an ITO affiant could possibly embark on any meaningful inquiries and investigations in that regard without effectively having to rely upon information directly or indirectly provided by other law enforcement officers in such foreign nations, thereby creating an effectively inescapable self-defeating circularity of impermissible reliance on information provided by law enforcement officers from outside the country.
d. In R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, the Supreme Court of Canada expressed concerns about the internal criminal procedural law of Canada being interpreted and applied in a manner that “would frustrate the necessary cooperation between the police and prosecutorial authorities among the various states of the world”.39 It seems difficult to imagine an approach more inimical to such necessary cooperation than that suggested by counsel for the accused, making it practically and/or legally impossible for ITO affiants to rely upon information provided by such other police and prosecutorial authorities from other nations, for the reasons outlined above.
e. Counsel for the accused also raised the spectre of our legal system effectively condoning, (i.e., by permitting ITO affiants to rely on information supplied by law enforcement officers from other nations without requiring ITO affiants to conduct further inquiries to obtain information about the credibility and reliability of such officers, and/or independent investigation to verify the accuracy of information supplied by such officers), demonstrable improprieties committed by police officers operating in countries governed by totalitarian or authoritarian regimes. However, the submission ignores the reality that our law already provides a mechanism to address such concerns; i.e., by restricting the ability of ITO affiants to rely on information supplied by other police officers where the defence provides an evidentiary basis for the view that cross-examination has a reasonable likelihood of establishing that the ITO affiant knew or ought to have known that certain information being provided to the ITO affiant was erroneous or false; e.g., because there were signs, incapable of being ignored by the ITO affiant, that something was “amiss”, in the sense of other officers supplying information having engaged in improprieties and/or otherwise providing information that was misleading, false or erroneous and/or having omitted material information. The approach suggested by counsel for the accused in this case effectively would turn that well-established approach on its head; i.e., by effectively requiring an ITO affiant to provide an evidentiary basis demonstrating that no such concerns existed.40
f. In this case, the defence provided no evidentiary basis for the view that cross-examination had a reasonable likelihood of establishing that Constable Lant knew or ought to have known that certain information being provided to the ITO affiant was erroneous or false. The defence instead relied on bald assertions that actions of American law enforcement agencies such as the RCDA and the DHS in particular generally should be regarded as suspect and inherently unreliable; i.e., because of broad and vaguely articulated concerns regarding America’s current political leadership, and its possible malign influence over American law enforcement agencies that might have had a detrimental impact on the credibility and reliability of information provided by Officer Monahan and Special Agent Seeley in this case.41 In my view, such broad and speculative assertions were far removed from the realm of permissible judicial notice. Defence provision of an evidentiary basis supporting the existence of specific concerns in that regard was required.
- For similar reasons, I reject submissions by defence counsel that Constable Lant’s reliance on information obtained and provided by Special Agent Seeley required Constable Lant’s demonstrable understanding of American procedural law relating to use of summons and subpoenas in the nature of those employed by Special Agent Seeley to obtain information from Wickr Inc. and Apple Inc., (i.e., the information that was then relayed to Constable Lant), and that cross-examination in relation to such matters had a reasonable likelihood of establishing that Constable Lant lacked such an understanding, such that he knew or ought to have known that such information therefore should not be relied upon. Without limiting the generality of the foregoing:
a. Again, the relevant underlying concern identified and relied upon by defence counsel in that regard was an apparent divergence between applicable American law of criminal procedure and the Canadian law of criminal procedure, insofar as the summons/subpoena process employed by Special Agent Seeley does not require judicial review and authorization in the same manner as sections 487.014 and 487 of our Criminal Code require judicial review and authorization for production orders and search warrants issued here in Canada.
b. In R. v. Harrer, supra, the Supreme Court of Canada rejected arguments that such divergences in the criminal procedural law of other nations from that of Canada should entail automatic rejection of evidence obtained by the law enforcement agencies of other countries. In particular, speaking for the unanimous court, Justice LaForest said this: “It is obvious that Canada cannot impose its procedural requirements to proceedings undertaken by other states in their own territories. And I see no reason why evidence obtained in other countries in a manner that does not conform to our procedures should be rejected if, in the particular context, its admission would not make the trial unfair. For us to insist that foreign authorities have followed our internal procedures in obtaining evidence as a condition of its admission in evidence in Canada would frustrate the necessary cooperation between the police and prosecutorial authorities among the various states of the world”.42
c. If foreign law enforcement agency compliance with procedures conforming to our internal criminal procedural law is not a precondition to the admissibility of evidence in Canadian criminal proceedings, there would seem to be even less justification for requiring an understanding of such compliance or non-compliance as a precondition for honest and reasonable reliance by Canadian ITO affiants on information supplied by officers from the law enforcement agencies of such other nations. In that regard, it should be remembered and emphasized that even our own law does not demand that received information have the quality of demonstrably admissible evidence before it is capable of being relied upon by ITO affiants in forming honest and reasonable belief in the existence of grounds for the issuing of a judicial authorization. Most notably, it is well-established that Canadian ITO affiants are permitted to rely upon unsworn hearsay, (including unsworn indications of hearsay provided by other police officers), inherently inadmissible as trial evidence, in their formation of an honest and reasonable belief in existence of the grounds required to issue a judicial authorization. Potential concerns about the admissibility of evidence obtained by foreign law enforcement agencies, (i.e., because of possibly demonstrable trial fairness concerns such as those contemplated by the Supreme Court of Canada in R. v. Harrer, supra, relating to the manner in which law enforcement agencies obtained information), should not be conflated with concerns about honest and reasonable belief in the accuracy of such information, which is the essential focus of a Garofoli application. In that regard, it also should be remembered and emphasized that, while Constable Lant referred in his provided narrative to the summons and subpoena processes employed by Special Agent Seeley to obtain information from Wicker Inc. and Apple Inc., it was the resulting information disclosed in response to such summons and subpoena documents that Constable Lant essentially relied upon in forming his stated belief about the existence of grounds for issuing of the requested judicial authorizations, and not the summons/subpoena documents which led to that relied-upon information being disclosed and obtained.
d. Moreover, the approach suggested by counsel for the accused, (i.e., effectively requiring ITO affiants to have a demonstrable understanding of the criminal procedural law of foreign jurisdictions, and to assess the extent to which such foreign procedures may or may not acceptably conform to or diverge from the Canadian criminal procedure that would apply in such situations, before permissible reliance of an ITO affiant on information obtained from officers in such foreign jurisdictions), also seems inherently impractical, unworkable, and likely to “frustrate the necessary cooperation between the police and prosecutorial authorities among the various states of the world”, the importance of which was recognized and emphasized by the Supreme Court of Canada.43 In that regard, I think judicial notice permits recognition of the reality that there currently are 192 independent states other than Canada which are members of the United Nations, (let alone other “observer” states and dependent territories of member states), and many if not most of those independent states have a multitude of internal jurisdictional subdivisions. It seems difficult to imagine how effective imposition of a requirement that Canadian ITO affiants have an understanding of the criminal procedural of such other jurisdictions, before then identifying and assessing any significant potential divergence of foreign criminal law procedures from our own, (without any clear benchmarks for doing so), as a prerequisite for honest and reasonable reliance on information provided by police officers from such jurisdictions, would not stymie or completely frustrate necessary co-operation between Canadian and foreign law enforcement agencies. Once again, time and resource constraints almost certainly would limit the ability of Canadian ITO affiants from acquiring such an understanding, even in relation to a particular foreign state or one of its law enforcement jurisdictional subdivisions. However, even if time and resources were devoted to acquiring such an understanding, Canadian ITO affiants then would be focused on providing reviewing justices with the results of such independent legal research; i.e., to demonstrate the reasonableness of the affiant’s belief concerning matters of law rather than matters of fact, even though the latter is the proper focus of establishing the existence of preconditions for issuing judicial authorizations.
e. To the extent counsel for the accused indicated a desire to challenge the manner in which Constable Lant was said to have “interpreted” the summons and subpoena documents employed by Special Agent Seeley to obtain information from Wickr Inc. and Apple Inc., in my view such matters essentially involved defence counsel quarrelling with the inferences drawn by Constable Lant in that regard from the undisputed underlying documents. As noted above, our courts deny leave to cross-examine ITO affiants in relation to such inferences. Without limiting the generality of the foregoing, defence counsel can argue and dispute the reasonableness of any such inferences on the existing record, without the need for any cross-examination in that regard.
b. As for the request for leave to cross-examine Constable Lant in relation to the “Monahan Statement”, and its suggested identification, signature and date “deficiencies”, which Constable Lant was said to have failed to set forth or address in his ITO affidavits:
i. To the extent counsel for the accused takes issue with the reasonableness of Constable Lant’s inference, based on the indicated “statement Monahan” title of the relevant Microsoft Word document provided to him, that the relevant document was indeed a typed statement of Officer Monahan, (e.g., despite its lack of a signature in that regard), defence counsel can advance such arguments without the need for cross-examination.
ii. To the extent counsel for the accused relies on the suggested significance of Constable Lant’s omission of indications in his ITO affidavits that the document titled “statement Monahan” was undated and unsigned, and/or Constable Lant’s omission of the complete text, screen captures and/or recordings of the described communications exchanged between Officer Monahan and “JimR” or “Hardguy777”, such omissions are clear on the face of the record; i.e., permitting an attack on the validity of the relevant judicial authorizations without the need for cross-examination.
iii. On the existing record, there is no evidentiary basis to suggest that Constable Lant had any reason to think or suspect that provided information regarding the content of those described communications was somehow false or misleading; e.g., as a result of simple inaccuracy, the information in that regard being incomplete, or the information in that regard being provided without further necessary context that somehow would have changed the natural meaning and implication of the comments that were being described and/or quoted.
c. As for the request for leave to cross-examine Constable Lant in relation to “Push Tokens, Apple devices [and] IP addresses”:
i. In his ITO affidavit evidence, Constable Lant included an outline of his general understanding of such concepts/technologies, as well as the particular indications and connections provided by each such concept/technology in this case, upon which he relied, in a described pathway of reasoning; i.e., to provide an indicated basis for his stated belief in a demonstrable connection between the “Hardguy777” user who communicated with Officer Monahan on Wickr and the accused, and why evidence regarding commission of the described offensive conduct would be found in the accused’s residence.
ii. The defence has failed to lead any evidentiary basis to suggest, let alone indicate, that Constable Lant actually lacked any such understanding, (despite his expression ITO affidavit indications to the contrary), and/or had any reason to believe that the indications provided via such push tokens, devices and IP addresses, upon which he relied, were false.
iii. In my view, this aspect of the matter is analogous to situations in which an ITO affiant has obtained information from a database and understands that information to be accurate, without the defence providing any evidentiary basis indicating that the affiant had any reason to believe that such information was false. As noted above, cross-examination in relation to such matters generally should be denied. Without limiting the generality of the foregoing, in my view:
such an ITO affiant is not required to demonstrate expertise in relation to how technologies permitting the recording, storage and retrieval of information function in order to demonstrate honest and reasonable belief in the indicated information such technologies provide;
cross-examination intended to demonstrate an incomplete or flawed understanding of the ITO affiant in that regard, as a basis for arguing that the indications relied upon by the affiant were somehow inaccurate, without any evidentiary basis establishing that the affiant knew or ought to have known of such inaccuracies at the time a relevant ITO affidavit was sworn, is neither relevant nor necessary to determining whether that affiant had an honest and reasonable belief in the existence of preconditions for the requested judicial authorization.
iv. Moreover, and in any event, to the extent counsel for the accused relies on the suggested significance of Constable Lant’s failure to provide the reviewing justices with more detailed information about how and why he has an indicated understanding of such matters, any such failure once again is something capable of being argued on the face of the record; i.e., permitting an attack on the validity of the relevant judicial authorizations without the need for cross-examination.
v. To the extent counsel for the accused relies on the suggested significance of Constable Lant’s indicated and explained focus on one of the IP addresses provided by Apple Inc.,44 (which in turn provided an indicated connection between the “Hardguy777” user on Wickr, the accused and his specified residence on Cherokee Road here in London), while failing to include references to the other provided IP addresses and/or conduct further investigation in relation to such other IP addresses:
In my view, the suggested failures of Constable Lant in that regard fall within the category of an absence of reference to something not seen, not heard or not done, leading to a sensible inference that the relevant something was not seen, not heard or not done; i.e., such that failure to specifically refer to such things not seen, heard or done does not constitute material non-disclosure warranting leave to cross-examine in relation to such matters.
It is generally accepted that, in the course of analysis required by a Garofoli application challenging the validity of a judicial authorization, the police are to be judged on what they did, (as described in the ITO affidavit evidence), and not on what they could have done. Failure to take further investigative steps before seeking a warrant accordingly will not invalidate the judicial authorization, and cross-examination in relation to such failure accordingly is irrelevant and unnecessary.45
In any event, any failure of Constable Lant to include reference to the other IP addresses in his ITO affidavits, relied upon by the defence, is clear on the face of the record without the need for cross-examination.
Conclusion
21For the reasons outlined above, I determined that the request for leave to cross-examine
Constable Lant in relation to his relevant “ITO” affidavits needed to be denied.
“Justice I.F. Leach”
Justice I.F. Leach
Date: February 19, 2026
i. issuing a general production order pursuant to s.487.014 of the Code requires information on oath satisfying a justice that there are reasonable grounds to believe that:
a. an offence has been or will be committed under the Code or any other Act of Parliament; and
b. the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence; and
ii. issuing a search warrant pursuant to s.487 of the Code requires information on oath satisfying a justice that there are reasonable grounds to believe that there is, in a building, receptacle or place:
a. anything on or in respect of which any offence against the Code or any other Act of Parliament has been or is suspected to have been committed,
b. anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against the Code or any other Act of Parliament;
c. anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant; or
d. any offence-related property.
Footnotes
- The ITO affidavit tendered by Constable Lant to obtain the aforesaid production order vis-à-vis Rogers Communications was sworn and submitted on July 31, 2023. The ITO affidavit tendered by Constable Lant to obtain the aforesaid search warrant in relation to the accused’s residence was sworn and submitted on August 22, 2023. The ITO affidavit tendered by Constable Lant to obtain the aforesaid search warrant in relation to the devices located within and seized from the accused’s residence was sworn and submitted on August 23, 2023.
- I note that the Applicant’s Book of Documents contained no affidavit filed in support of the application for leave to cross-examine Constable Lant, and no such supporting affidavit was filed separately.
- In his ITO affidavits, Constable Lant explained that “Chat IW” is a “no cost” chat platform, (most popular in the United States and the United Kingdom), allowing its users to communicate instantly with strangers “through the simplest of processes”, whereby “hundreds of users are online all the time performing random chats”.
- In his ITO affidavits, Constable Lant explained that “Wickr” is the name of a software company and “instant messenger application”, which allows users to exchange “end-to-end encrypted and content-expiring messages, including photos, videos and file attachments”; an app “designed to protect the privacy and security of its users, by stripping messages or identifying details and preventing anyone other than the sender and the recipient from accessing them”.
- In his ITO affidavits, Constable Lant explained that “Jitsi” is a “collection of Open-Source projects which provide state-of-the-art conferencing capabilities that are secure, easy to use and easy to self-host”.
- As explained by Constable Lant in his ITO affidavits, a “push token” is a unique key for the app-device combination issued by the Apple or Google “push notification gateways”, allowing gateways and push notification providers to route messages and ensure that the notification is delivered only to the unique app-device combination for which it is intended.
- As explained by Constable Lant in his ITO affidavits, an “IP Address” is an “Internet Protocol (IP) address”, identified by a specific and unique number, (i.e., an IP address identifier consisting of a series of four numbers separated by periods), or more recently and in the alternative by a new specific and unique “IPV6” identifier, (i.e., an IP address identifier consisting of eight alpha numeric numbers separated by colons), assigned when a subscriber of an Internet Provider logs into his or her internet service.
- See R. v. Garofoli, 1990 CanLII 52 (SCC), [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.
- See R. v. Garofoli, supra, at p.1465; and R. v. Victoria, supra, at paragraphs 66, 74 and 81.
- 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:
- See R. v. Patten, [2019] O.J. No. 6578 (S.C.J.), at paragraph 11.
- See R. v. Victoria, supra, at paragraph 76.
- See R. v. Patten, supra, at paragraph 10.
- Typically, evidence that the affiant knew or ought to have known that certain content of the ITO was false, inaccurate, or misleading 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; and R. v. Phan, supra, at paragraphs 54-55.
- 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.
- 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.
- See R. v. Phan, supra, at paragraph 51.
- See World Bank Group v. Wallace, supra, at paragraphs 122-123; and R. v. Phan, supra, at paragraph 51.
- See World Bank Group v. Wallace, supra, at paragraphs 122-123; and R. v. Phan, supra, at paragraph 51.
- See R. v. Patten, supra, at paragraph 12.
- Ibid., at paragraph 15.
- See R. v. Phan, supra, at paragraphs 68 and 72.
- 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.
- See R. v. Nguyen, supra, at paragraph 55.
- Ibid., at paragraphs 50-51.
- See R. v. Patten, supra, at paragraph 14.
- Ibid., at paragraph 30.
- See R. v. Victoria, supra, at paragraph 85.
- See R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.), at sub-paragraph 68(6), and the authorities cited therein.
- See R. v. Garofoli, supra, at p.1465; and R. v. Phan, supra, at paragraph 66.
- Without limiting the generality of the foregoing, I certainly agree with the view expressed by Justice Orsini, at paragraph 13 of his reasons released on April 22, 2025, denying the accused’s “Dawson application” at the discovery preliminary hearing conducted in relation to this matter, that “Garofoli does not stand for the proposition that an application for leave [to cross-examine an ITO affiant] is only required in circumstances involving confidential informants”.
- See R. v. Garofoli, supra, at paragraphs 111-112.
- See R. v. Lising, supra, at paragraphs 40-41. See also R. v. Victoria, 2018 ONCA 69, [2018] O.J. no. 710 (C.A.), at paragraphs 76-77 and 79.
- See R. v. Garofoli, supra, at paragraphs 111 and 112.
- In that regard, counsel for the accused acknowledged that R. v. Debot was specifically focused on information supplied to the ITO affiant by confidential informants, but argued that “we have to use the same theory in Debot” when approaching cases involving ITO affiant reliance on information supplied by other police officers.
- The material filed by the parties for my consideration, in relation to the accused’s application for leave to cross-examine Constable Lant in connection with the accused’s Garofoli application, included no information addressing that particular aspect of the matter. However, counsel for the accused asserted during the course of oral submissions that “one of the officers” testifying during the discovery preliminary hearing conducted in relation to this matter had indicated that there is “no judicial oversight in the warrant-issue process” employed by the American law enforcement agencies involved in this case, and Crown counsel did not dispute the assertion.
- For example, taken to its logical extreme, the approach suggested by counsel for the accused would mean that an ITO affiant serving with the London Police Service, in forming an honest and reasonable belief in the existence of preconditions for obtaining a judicial authorization, effectively would be unable, (even in the absence of indications that anything was amiss in terms of the propriety of underlying reporting of information by other officers), to rely on information provided from an unfamiliar officer employed by the St Thomas Police Service, Woodstock Police Service or Stratford Police Service; i.e., separate and independent police services responsible for serving other communities within a relatively short drive from London.
- In the course of oral submissions, counsel for the accused initially suggested that the law should recognize a “different scale of police forces” generally, (depending on an ITO affiant’s likely familiarity with another police force supplying information in the particular circumstances of any given case), but then emphasized the suggested importance of at least drawing such distinctions in relation to law enforcement agencies from other countries.
- See R. v. Harrer, supra, at paragraph 15.
- In the course of oral submissions, it was suggested by counsel for the accused that an ITO affiant should at least have such an obligation in relation to information supplied by officers from law enforcement agencies that were recognized as “unreliable” and/or operating in countries with recognized “credibility issues”. However, such suggestions raise obvious and unanswered questions as to the manner in which such “unreliability” and “credibility issues” could or should be accepted as recognized/established in that regard for purposes of a Garofoli application. Without limiting the generality of the foregoing, it seems unlikely that most Canadian ITO affiants and courts would be equipped to make such sweeping determinations, or that such matters are readily amenable to recognition by way of judicial notice. Requiring an accused to lead an evidentiary basis in that regard, (in accordance with the well-established principles governing such applications), is far more conducive to such matters being considered and addressed, when appropriate and necessary, in a manner properly focused on the central and narrow issues to be addressed by a Garofoli application.
- For example, counsel for the accused asserted that, in relation to the United States, “there’s some political issues there with the veracity of their police force (sic) being influenced by their leader”, which in turn was said to warrant cross-examination of Constable Lant in that regard; e.g., to ask Constable Lant whether he had “any concerns given, you know, these political climates and stuff like that”.
- See R. v. Harrer, supra, at paragraph 15.
- Again, see R. v. Harrer, supra, at paragraph 15.
- In his ITO affidavit evidence, Constable Lant explained why he focused in particular on the IP address ending in 110; i.e., owing to the extensive range of data provided, and because that was the IP address used by the relevant subscriber to conduct an update on the day communications were exchanged with Officer Monahan, thereby indicating a close temporal connection to the offensive conduct being investigated. There was also an ongoing history of that IP address being associated to the relevant devices and the subscriber data provided by the American law enforcement agencies. In other words, Constable Lant provided a rational explanation as to why he considered his focus on that particular IP address to be reasonable and justified; i.e., negating any suggestion that his focus on that particular IP address was the result of random selection.
- See, for example, R. v. Vu, 2011 BCCA 536, at paragraphs 44-45, affirmed [2013] 3 S.C.R. 537.