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R. v. Vukelich, 1996 CanLII 1005 BCCA

Cases of Note / 10.07.1996

[23] My conclusions on the foregoing, briefly stated, are that counsel’s statements, possibly supported by an affidavit, are a useful first step in persuading the judge to order a voir dire.  If these are found to be insufficient, a more formal approach, involving affidavits and possibly an undertaking to adduce evidence (including calling the deponent as a witness), may be required.  In other words, I would opt for the flexible approach recommended by the Ontario Court of Appeal in Kutynec, rather than the formal procedure described on the earlier appeal in that case.  In doing so, I do not purport to have exhaustively mentioned all the possible steps that should, or may, be taken in this flexible approach

[26] Based on these authorities, it does not follow that an accused is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search.  The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues.  I reach that conclusion because it is clear from cases such as Grant and Garofoli that a warrant remains valid if there is enough left in the supporting affidavit to support the issuance of the warrant after all the impugned portions are deleted.  In other words, the trial judge does not revisit the application for the warrant ab initio in the light of subsequent information, but rather considers whether, as stated inGarofoli at 1452, “… there continues to be any basis for the decision of the authorizing judge” to issue the warrant.