Supreme Court decision on Garofoli and O’Connor applications

World Bank Group v. Wallace, 2016 SCC 15:

A Garofoli application is more limited in scope than a typical O'Connor application, relating as it does to the admissibility of evidence, namely intercepted communications. An O'Connor application made in the context of a Garofoli application must be confined to the narrow issues that a Garofoli application is meant to address. The Garofoli framework assesses the reasonableness of a search when wiretaps are used to intercept private communications. A search will be reasonable if the statutory preconditions for a wiretap authorization have been met. A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds. What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn. 

While the O'Connor process may be used to obtain records for purposes of a Garofoli application, the relevance threshold applicable to such an application is narrower than that on a typical O'Connor application. To obtain third party records in a Garofoli application an accused must show a reasonable likelihood that the records will be of probative value to the narrow issues in play on such an application. This test for third party production is also consistent with another form of discovery on a Garofoli application: cross‑examination of the affiant. Both forms of discovery serve similar purposes and engage similar policy concerns. The justifications that warrant limiting cross‑examination of the affiant apply with equal force to third party production applications. The "reasonable likelihood" threshold is appropriate to the Garofoli context and fair to the accused.

Of the Law Societies of Upper Canada and Nunavut