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[84] In Garofoli, which involved a challenge to a conventional authorization under what is now Part VI of the Criminal Code, Sopinka J. set out a procedure to be followed when the Crown objects to disclosing part of the affidavit filed in support of an application for authorization: see Garofoli, at p. 1461. The same procedure applies to an ITO relied upon to support issuance of a search warrant: R. v. Blake, 2010 ONCA 1 (CanLII), 251 C.C.C. (3d) 4, at para. 15; R. v. Rocha, 2012 ONCA 707 (CanLII), 112 O.R. (3d) 742, at para. 56.
[85] Step six of Garofoli may be invoked when the editing of the supportive affidavit or ITO to ensure compliance with the CI privilege rule renders the affidavit or ITO incapable of satisfying the conditions precedent for issuance of the warrant or authorization. Step six is in these terms, at p. 1461:
6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
The step six procedure attempts to balance conflicting interests. On the one hand, the interests of law enforcement, including the duty to ensure the protection of informers and preserve the near-absolute sanctity of CI privilege. On the other hand, the right of every person charged with a crime to make full answer and defence: see Garofoli, at p. 1458. The balancing is not a weighing of absolutes for, as we have already seen, neither the right to make full answer and defence nor CI privilege is absolute.
[86] Step six adopts a quid pro quo approach to this balancing process. This involves, on the one hand, permitting the Crown to rely upon the unredacted ITO, which has not been disclosed to the defence, to support the issuance of the warrant. And on the other hand, permitting the defence to challenge the issuance of the warrant, and thus the reasonableness of the search, on the basis of the redacted ITO and a judicial summary of the nature of the redacted material. The Crown may only invoke step six, however, where the summary makes the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence: Crevier, at para. 43; Garofoli, at p. 1461. A summary that fails to meet this standard disentitles the Crown to rely on the unredacted ITO to sustain the issuance of the warrant as the enabling search authority.
[87] Three points about the judicial summary are worthy of reminder.
[88] First, what is provided is a summary. By its very nature, a summary is general, not detailed. Its predominant characteristics are conciseness and brevity. A summary eschews detail. Indeed, were a summary to contain the last detail, it would not only exceed what is required by step six but also, in all likelihood, breach CI privilege.
[89] Second, and despite its general nature, the summary must provide an accused with a meaningful basis on which to challenge whether the author of the ITO made full and frank disclosure of the Debot factors relating to the CI: Crevier, at para. 83.
[90] Third, the summary need only make the accused aware of the nature of the redacted material, not its substance and not its details. The summary must be sufficient to allow the accused to mount a challenge to the redacted material by argument or evidence. But recall that the judicial summary is not the only means available to an accused to challenge the issuance of the warrant. An accused may seek leave to cross-examine the author of the ITO, may rely on other information that has been the subject of Crown disclosure, or may adduce other evidence: Crevier, at paras. 72, 77 and 83.
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