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 s o 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 w...