Garofoli Step Six and the Growing Culture of Secrecy in Canadian Criminal Law
Part I: Garofoli Step Six
Introduction
There is a creeping culture of secrecy among police officers and Crown prosecutors. Anyone who cares about the long-term preservation of a free society should pay attention.
This is the first in a series of blog posts examining why the culture within these state institutions has darkened. Each post will address a specific development in the law and explain how it has unintentionally encouraged and protected this growing culture of secrecy.
The topic of today’s post is a special procedure for reviewing search warrants known as “step six”.
What Is “Step Six”?
One of the most important functions of the courts is reviewing search warrants to ensure they are based on sufficient grounds, so that police do not invade people’s privacy without lawful justification.
There is a special procedure available to the Crown when confidential informants (“CIs”) are involved in obtaining a search warrant. This procedure, known as “step six”, is intended to balance the need to protect the identities of confidential informants against the need for meaningful review of police conduct.
When the Crown invokes step six, a judge may conclude that a search warrant was justified based on grounds withheld from the defence. The defence receives only a “summary” of the undisclosed material, making it difficult, as a practical matter, to challenge the warrant effectively. This shields the warrant from rigorous scrutiny.
How Did We Get Here?
The step six procedure was established by the Supreme Court of Canada in the landmark 1990 decision of R. v. Garofoli, but for many years it was rarely acknowledged in practice.
Approximately fifteen years ago, courts began questioning why step six was being neglected.
This jurisprudential movement began with Justice Code’s decision in R. v. Learning, and was later reinforced by the Ontario Court of Appeal in R. v. Rocha and R. v. Crevier. Today, police and Crown prosecutors invoke step six routinely.
The movement toward more frequent use of step six was likely well intentioned. The caselaw emphasizes the importance of protecting confidential informants and encouraging them to come forward, both to protect the informants themselves and to advance the broader societal interest in investigating crime.
At the same time, the caselaw also recognizes the importance of transparency. However, it distinguishes between information relevant to the actual guilt or innocence of an accused and information relevant to challenging the grounds for a search warrant. While withholding information makes it more difficult to hold the state accountable for unjustified intrusions into private spheres, such as homes and private communications, the risk of convicting an innocent person is regarded as a concern in a class of its own.
To be fair, this is a difficult balance to strike. The movement toward more frequent use of step six is understandable. However, the rise of step six has had unintended consequences.
Why Is This a Problem?
Step six is no longer an obscure procedure. It is now regularly invoked in the courts, to the point of being overused.
Unfortunately, in the caselaw dealing with how step six should operate in practice, an issue left largely unresolved in Garofoli, courts have declined opportunities to restrict its use or impose more robust oversight mechanisms, see R. v. Gero.
Because step six shields police conduct from meaningful scrutiny, it permits police to rely on inaccurate or insufficiently corroborated information when obtaining warrants for highly invasive investigative procedures.
Police may lack sufficient incentive to fully verify and corroborate information received from confidential informants. In some cases, information directly undermining the credibility of a CI may be withheld, even where disclosure would not identify or endanger the CI. This occurs because step six has become a structural shield against meaningful oversight.
Why does this matter? That depends on the values one holds.
If all one cares about is investigating crime, even at the expense of basic civil liberties, then perhaps there is no problem.
However, if one wishes to live in a society where police are scrutinized to ensure that their tremendous powers are exercised responsibly, then a secretive procedure like step six should be a cause for concern.
The issue is not simply the procedure itself. It is also the message it sends, and the institutional culture it encourages among both police and prosecutors. It contributes to a creeping culture of secrecy where, little by little, those who wield state power come to expect that their actions will not be meaningfully scrutinized.
Over time, this produces a dangerous sense of institutional invincibility.
