 |
| Patrick J Ducharme |
Most search warrants will be challenged at trial before the trial Judge by an application under section 8 of the Charter alleging that the search was unreasonable, notwithstanding the authorization of a Justice or Judge. The search warrant may also be challenged by way of an extraordinary remedy such as certiorari or a motion to quash. This type of application must be brought to the Superior Court of the Province, a court of plenary jurisdiction that has authority over the process of the Provincial Court.
Certiori applications may be made to the Superior Court even if the case is still before the Provincial Court. For example, mandamus (an application to a Superior court Judge to force a lower court Judge to make a decision within the jurisdiction of that lower court Judge) may be advanced if the delay occasioned by waiting to challenge a search before a trial Judge in Provincial Court will cause irreparable harm to the person who was the subject of the search. It may also be made in circumstances where the person who was the subject of the search wishes to have an immediate return of the seized materials.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme’s Youtube Channel