Stuart O'Connell Criminal Law Blog

  The validity of the search warrant does not end the inquiry as to the admissibility of the evidence when a Charter infringement occurred during the investigatory process that led to the search and seizure at issue. A s. 24(2) Charter analysis is triggered when an infringement of s. 8 has occurred in the investigatory process, apart from a subsequent reasonable search pursuant to a valid warrant.   R. v. Strachan , 1988 CanLII 25 (SCC); R. v. Grant , [1993] 3 S.C.R. 223, at p. 254; see also R. v. Strauss , 2017 ONCA 628, at para. 45. The evidence tendered need not be causally linked to Charter violation in the investigative process.   As the Supreme Court said in Grant (1993), at p. 255: The warrantless searches, while perhaps not causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question … to find otherwise would be to ignore t...

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