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.

Subversionconnotes 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 Garofoliprocedure 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).