The Residual Discretion to Set Aside a Properly Issued Warrant


A trial judge has a residual discretion to set aside a properly issued search warrant or authorization.

In order to bring him/herself within the sweep of this residual discretion, the Applicant must demonstrate that the police conduct was so subversive of the pre-authorization process that the search authority issued must be set aside to protect the process and the preventative function it serves.

R. v. Paryniuk, 2017 ONCA 87 (CanLII) at para. 66, leave to appeal refused, [2017] S.C.C.A. No 81.

Subversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process.

Supra, at para. 74.

Where the judge is satisfied that the conduct of the police has subverted the pre-authorization process through such egregious misconduct as the following:
  •  deliberate non-disclosure,
  •  bad faith,
  • deliberate deception,
  • fraudulent misrepresentation and the like.

a trial judge has a residual discretion to set aside a properly issue search warrant or authorization. 

However, the standard to be met to invoke this discretion is high.

Supra, at para. 70.
As one BC court has noted: if the purpose and legitimacy of the Garofoli procedure is not to be undermined, any such residual discretion must be exercised sparingly and only in rare cases.
R. v. Wong, 2017 BCSC 306 (CanLII), at para. 102.


Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more