After a search warrant is granted, an accused may bring an application before the court for judicial review to determine whether or not the search warrant should have been issued. This type of judicial review, commonly referred to as a Garofoli hearing, is explained in detail in this paper, which discusses how the courts have approached the various procedural aspects of a Garofoli hearing. A brief background on the standard of review and types of review (e.g., whether the warrant’s facial validity or sub-facial validity is challenged) is provided, and principles and procedures related to cross-examination, excision, and amplification are discussed. This paper also considers issues relevant to assessing the affiant’s evidence, as well as the process for dealing with a heavily redacted affidavit. In addition, an alternative to the Garofoli hearing to set aside a search warrant is briefly highlighted.
This paper is part of a collection presented at LESA’s Search Warrants program in Edmonton on February 19, 2016 and in Calgary on February 26, 2016.