Challenging the Warrant: The Ability of the Defence to Cross-examine the Affiant even though it has already done so at the Preliminary Inquiry


Although the defence cannot challenge the validity of a search warrant at the preliminary inquiry, it can seek to cross-examine the affiant of the affidavit in support of the application for the search warrant under the authority of R. v. Dawson (1998), 1998 CanLII 1010 (ON CA). 

The defence is not obligated to accept cross-examination of the affiant at the preliminary inquiry as a substitute for cross-examination at trial. 


When the defence shows a reasonable likelihood that cross-examination of the affiant on the s. 8 application at trial will generate evidence tending to discredit the existence of one or more of the grounds for the issuance of the warrant, the defence is entitled to conduct that cross-examination as part of the s. 8 application at trial regardless of whether that cross-examination will add to the cross-examination conducted at the preliminary inquiry. 


R. v. Shivrattan, 2017 ONCA 23 (CanLII) at paras. 53,54 (leave to appeal to the SCC refused, 2017 CanLII 46398).
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Stuart O'Connell, O'Connell Law Group. (All rights reserved to author).

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