Comment apprécier s'il y a un abus de procédure lorsqu'un policier demande un mandat pour une 2e fois quand cette autorisation sollicitée est basée entièrement sur la même dénonciation qui fut initialement rejetée

Application for the taking of bodily substances for the purpose of forensic DNA analysis (Re), 2024 NSPC 7 

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[8] Similar concerns were addressed in Ontario in R. v. Campbell, [2014] O.J. No. 6541 at ¶ 56, where McMahone J. offered advice aimed at avoiding allegations of abuse of process:

56  To avoid the allegation of abuse of process, the police, in concert with the Crown Attorney's Office, may wish to develop a procedure for submitting an application for a second hearing based entirely on the same ITO, such procedure may consider the following steps:

o   1.Upon refusal the officer should consult with senior colleagues to determine if additional information could be obtained to strengthen the application.

o   2.Before resubmitting the exact same ITO, they should consult with the Crown about whether such action would be appropriate. Such consultation should take place, unless there are exigents circumstances requiring immediate action.

o   3.In submitting the materials the officer should ensure the ITO includes the particulars of the earlier refusal, including the time, name of the judicial officer, and the reasons of refusal.

o   4.A copy of any reason or endorsement provided by the judicial officer who refused the warrant should be an appendix to the ITO.

o   5.Ensure the second judicial officer is the judicial officer who is on call and that no specific officer should be selecting individually any reviewing judge. The officer should not select a particular judicial officer, but follow the procedure for contacting whoever is next on call.

o   6.If the second judicial officer refuses the application the officer should not resubmit the same ITO. The officer should only submit a new application if there is additional information in the new ITO.

…

58  I do not accept the argument that allowing successive search warrant applications on the same materials would amount to judge-shopping and would be a reason not to allow for such procedure. For the reasons as I have articulated I conclude the following:

o   1.Pursuant to s. 487, a Justice of the Peace or Justice has the jurisdiction to entertain a search warrant on the same material that another justice has refused to grant a search warrant.

o   2.The second Justice must be advised of the prior refusal and a summary of the reasons of such refusal; and,

o   3.A second application, I find, is a hearing de novo and is not a review or appeal of the Justice's decision.