Inherent Jurisdiction: Did the Police Stage a Break-in at the Accused's Home so that they had a Pretext to Enter it?

As part of its inherent jurisdiction, a Superior Court has the discretionary authority to permit an individual’s testimony to be audio recorded for the purpose of facilitating voice analysis of that witness where doing so is necessary to ensure “justice between the parties and to secure a fair trial between them”.
R. v. Dunstan, 2017 ONCA 432, at para. 46, in obiter.  

In R. v. Dunstan, the defence sought an order from a Superior Court judge permitting the defence to use a high-quality microphone to record the testimony of a particular police officer.  The defence alleged that the officer had staged a break-in to the accused’s home and placed the anonymous call to police reporting a break-in in order to gain access to his house illegally. Police responding to the anonymous call discovered significant amounts of various drugs and cash. On the evidentiary record, the defence was able to establish an air of reality to its allegation.


Inherent Jurisdiction

Inherent jurisdiction is a “reserve or fund of powers” or a “residual source of powers”, which a superior court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, at para. 23.
Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).

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