Challenging the Validity of a Search Warrant
At trial, the defence may challenge the constitutionality of a search conducted under the authority of a search warrant by demonstrating that the contents of the affidavit relied on to obtain the warrant could not justify its issuance (this affidavit is known as the Information to Obtain or ITO ). If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter . The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter : R. v. Pires , 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8. On a challenge to the validity of the warrant, the reviewing judge does not make a de novo assessment of the ITO’s contents. Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of...