What is the test for material non-disclosure?

Ontario, Canada


The following excerpt is from R. v. Hafizi, 2014 ONSC 3547 (CanLII):

It is clear however that any material non-disclosure must be material as set out in R v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. No 115 at par 56: 56 The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

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