Can the residual discretion of a reviewing judge in a Garofoli hearing be triggered by negligent police conduct? Or must there be some form of intentional wrongdoing by the affiant for a judicial authorization which subverted the prior authorization process? A recent ruling from the Ontario Court of Appeal has held that widening the residual discretion to include negligence would only serve to intensify prolixity in pre-trial proceedings.

1. Introduction

On September 25, 2024, Daniel Mackenzie was acquitted of a slew of firearm and weapons offences by Judge Davin Garg of the Ontario Court of Justice at Hamilton, Ontario. The acquittals stemmed from the collapse of the Crown’s case when Judge Garg invoked the residual discretion regarding two search warrants and excluded critical evidence under s. 24(2) of the Charter of Rights and Freedoms. The Crown appealed. The central question on appeal was whether Judge Garg erred in finding that the residual discretion could be invoked on a Garofoli review in the absence of intentional police conduct. On September 3, 2026, the Ontario Court of Appeal reversed in a ruling indexed as R. v. Mackenzie. “The jurisprudence is clear that to invoke the residual discretion during a Garofoli hearing, there must be some form of intentional wrongdoing on the part of the affiant,” said Associate Chief Justice J.M. Fairburn. “That wrongdoing must be so grave that it subverted the search warrant process.” (here)

2. Background

Two search warrants were issued on February 27, 2024. One warrant authorized the search of Mr. Mackenzie’s Ford F-150 which was previously searched on February 5, 2024. The other warrant authorized the search of a detached garage that was purportedly rented by Mr. Mackenzie. Although the ITO explained that his apartment had been searched under the previous warrant, it did not disclose that his truck had also been searched. Nor did the ITO explain that on February 4, 2024, Mr. Mackenzie’s girlfriend, Colleen Hunter, had denied knowledge of his association with firearms and the truck. But on February 27, 2024, three weeks later, Ms. Hunter told the police that Mr. Mackenzie “has firearms and was dangerous.” The ITO also failed to disclose that Ms. Hunter was facing a pending assault charge laid on December 4, 2023, in which Mr. Mackenzie was the complainant.

Judge Garg found that the three areas of omission deprived the issuing justice of information necessary to make an independent determination whether the warrants should issue. First, the missing information about the previous unsuccessful search of the truck would have permitted the issuing judge to consider the likelihood that firearms would be found there three weeks later. Second, the missing information about the inconsistency between Ms. Hunter’s two statements to the police was relevant to her credibility as a source of information for the ITO. Third, the missing information about Ms. Hunter’s outstanding assault charge would have revealed a possible animus against Mr. Mackenzie giving rise to a potential motive to lie.

In the Garofoli ruling, Judge Garg “added” the missing information into the ITO and concluded that, although it detracted from the overall strength of the ITO, the search warrants could still have issued. In the usual course, that would have ended the Garofoli hearing. However, Judge Garg went on to consider whether the warrants should be set aside based on the residual discretion. It was conceded that the affiant did not seek to deliberately mislead the issuing judge. The omissions were the product of “negligence and inexperience.” Judge Garg concluded that the “subversion” of the warrant process did not rest on the “affiant’s intent” but on a “reckless approach” to what was included in the ITO which led to a “dramatically different” picture from the “true state of affairs.” A Charter s. 8 breach based on the residual discretion led to exclusion of the seized evidence and the acquittals followed.

3. What is the Residual Discretion?

The leading case is the decision of the Nova Scotia Court of Appeal in R. v. Morris which was subsequently endorsed by the Supreme Court of Canada in R. v. Araujo. (here and here) In Morris, Justice Thomas Cromwell held that “even fraudulent errors” in an ITO will not “automatically invalidate [a] warrant.”  That statement is consistent with the standard of review established by the Supreme Court of Canada in R. v. Garofoli. (here) The existence of “fraud, non-disclosure, misleading evidence and new evidence” is relevant to the Garofoli inquiry but they are not prerequisites for review. Their impact is to determine if there continues to be any basis for the decision of the issuing judge.

Justice Cromwell went on in Morris to state that even though fraudulent errors would not result in the automatic invalidation of a warrant, this does not mean that errors – “particularly deliberate ones” – were irrelevant to the review process. The need to protect the prior authorization process means that a reviewing judge is not foreclosed from “concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventative function it serves.”

4. The Mackenzie Ruling

Associate Chief Justice Fairburn concluded that Justice Cromwell was clear in his summary of the law governing the residual discretion. The discretion addresses “fraudulent or deliberately misleading material in [an] information”, information that is “so subversive” of the prior judicial authorization process that the warrant should be invalidated. Much of the appellate debate, then, focused on the decision of the Ontario Court of Appeal in R. v. Paryniuk where Justice David Watt referred to the presence of “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like” as being sufficient to trigger the residual discretion. (here)

Mr. Mackenzie argued that “the like” signaled an extension of the residual discretion to negligent police conduct. The Crown argued the discretion is available only in rare cases where the affiant intentionally took steps to subvert the prior authorization process. The Criminal Lawyers’ Association, which intervened on the appeal, argued that the discretion must remain flexible enough to ensure that justice can be done in individual cases where police conduct, whether intentional or not, subverts the prior authorization process.

Associate Chief Justice Fairburn held that the court’s ruling in Paryniuk is clear that some form of intentional conduct on the part of the affiant is required to invoke the residual discretion. “If Watt J.A. intended to extend the residual discretion to encompass police negligence, even serious police negligence, that would not have been difficult to express as part of the list,” she said. “The use of the term ‘the like’ is clearly a reference to the other ‘like’ circumstances where the residual discretion can be invoked, all of which include some form of intentionality.” Two other rulings of the Ontario Court of Appeal, R. v. Colbourne and R. v. Booth, have also reinforced “wrongdoing by the affiant” as a precondition to invoking the residual discretion. (here and here)

5. Conclusion

Associate Chief Justice Fairburn emphasized that Garofoli hearings are designed to avoid prolixity in pre-trial proceedings. Infusing the residual discretion with a requirement of intention accords with that circumscribed approach. A Garofoli review is not a trial but, rather, a narrow avenue to determine the admissibility of evidence. “[O]ne would be hard pressed to find a justice system participant today who would not agree that there has been no retreat from prolixity in legal proceedings and, in fact, it continues on a steady march forward,” she said.