Case information

Criminal law — Charter of Rights and Freedoms — Search and seizure — Fundamental justice — Right to fair hearing — Search warrant — Whether judicial residual discretion to set aside warrant should be determined by an abuse of process application, not as part of a s. 8 Charter application — Whether standard authorising setting aside a warrant should be aligned with test for abuse of process?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

An informant with a considerable criminal history alleged Mr. Kerr was seeking help to murder his ex-girlfriend. Police used the informant as an agent to arrange a meeting between Mr. Kerr and an undercover officer and obtained a warrant to intercept their communications. The affidavit filed in support of the Information to Obtain the warrant did not disclose that consideration was given to the informant. Mr. Kerr called the undercover officer and the call was intercepted. His utterances were interpreted by the informant as coded inculpatory statements. Mr. Kerr applied to have the evidence excluded from trial for breaches of ss. 7 and 8 of the Charter. The trial judge admitted the evidence and convicted Mr. Kerr of attempting to obstruct justice and on two counts of counselling to commit murder. The Court of Appeal dismissed an appeal from the convictions.