R. v. Khamvongsa, 2025 BCCA 33, February 5, 2025, at paragraphs 46 to 48:

First, when assessing the seriousness of Charter-infringing conduct in the context of a s. 8 violation based on insufficient grounds for a warrant, the fact that the impugned search was conducted relying on prior judicial authorization will be attenuating. However, this factor is not determinative and its mitigating effect may be outweighed or significantly diminished by countervailing factors unique to the case that also impact the assessment of seriousness. For example, incorporating false or deliberately misleading information in the ITO, or other identified drafting problems that individually or in their cumulative effect subvert the warrant process.

Second, the assessment of seriousness is fact-intensive, determined case-by-case, and contextually informed. As such, consistent with the wording of s. 24(2) itself, “all the circumstances” surrounding the Charter-infringing conduct must be considered, including all of the reasons underlying a found violation. (See also R. v. Zacharias, 2023 SCC 30 at para. 66.) It is not just the outcome of the s. 8 voir dire that informs the analysis, or particular aspects of the impugned state conduct. Rather, all material findings made in the s. 8 voir dire are relevant to the assessment of seriousness, including, in my view, findings that necessitated the excision of information from the ITO.

Finally, although a finding of an intent to mislead is likely to result in Charter-infringing conduct landing at the top end of the culpability ladder, that is not the only route to getting there. The fact that an ITO is factually misleading (irrespective of intent), and/or suffers from other drafting issues that either individually or in their cumulative effect realistically subvert the warrant process, can also move the state conduct to the more serious end of the spectrum. It depends on the nature and number of the errors, in the context of the particular circumstances of the case. Those circumstances necessarily include the nature of the privacy interest at stake and the significance of the state intrusion enabled by the warrant: R. v. Voong, 2013 BCCA 527 at para. 97.