Police Misconduct: The Discretion to Set Aside a Properly Issued Search Warrant
A
trial judge has a residual discretion to set aside a properly issued search
warrant or authorization where the judge is satisfied that the conduct of the
police has been subversive of the pre-authorization process leading to the issuance
of the search warrant. Such conduct includes deliberate
non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation
or the like.
R. v.
Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal
refused, [2017] S.C.C.A. No. 81, at para. 66.
The
standard to be met to invoke this discretion is high. Indeed, some courts have required
that the conduct amount to an abuse of process.
R. v. Vivar, 2009 ONCA 433 (CanLII), at para. 2; R. v. Bacon, 2010 BCCA
135 (CanLII), at para. 27.
Stuart O'Connell, O'Connell Law Group, www.leadersinlaw.ca
Comments
Post a Comment