Chapter 7 – Curing Complexity: Moving Forward from the Toronto 18 on Intelligence-to-Evidence

Abstract

This chapter addresses one aspect of Canada’s “intelligence to evidence” (I2E) problem that both featured in the Toronto 18 prosecutions and has since occupied courts (and presumably agencies): criminal trial challenges to warrants supported by intelligence and used to collect information employed either to seed a subsequent RCMP investigation (or wiretap warrant) or as evidence of guilt in a subsequent prosecution. These matters implicate so-called Garofoli applications. The awkward interface between these Garofoli applications and I2E may constitute the single most perplexing (and possibly resolvable) I2E issue. Specifically, this chapter asks whether Garofoli applications heard ex parte (that is, with only the government party before the court) and in camera (that is, in a closed court) would be constitutionally viable under section 7 of the Charter. We conclude that closed material Garofoli applications with built-in procedural protections — namely statutorily-mandated special advocates — would meet constitutional standards.