Determining Reasonableness: The Collins Test and Hunter v. Southam
| Author | Susanne Boucher & Kenneth Landa |
| Pages | 89-142 |
89
1Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 [Hunter] at 109; R. v. Araujo,
2Hunter, above note 1.
3R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) [Collins].
4Ibid.
5Ibid. at 14.
Determining whether a search is reasonable involves a balancing of compet-
ing interests — the court must decide if the state’s interest (for example,
advancing the goals of law enforcement, national security, or public admin-
istration) outweighs an individual’s interest in being left alone by the gov-
ernment (that is, privacy interests).1The cases of Hunter v. Southam2and R.
v. Collins3set out the primary legal tests for striking this balance.
In R. v. Collins,4a case involving the warrantless search of a person, the
Supreme Court stated a simple framework for assessing the reasonableness
of a search. Very generally, a search will be considered reasonable under sec-
tion 8 of the Charter if:
1. the search is authorized by law;
2. the law that authorizes the search is itself reasonable; and,
3. the manner in which the search is conducted is reasonable.5
The following subsections will address each component of the Collins
test and illustrate how the courts determine whether a search meets the cri-
chapter 4
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Determining Reasonableness:
The Collins Test and unter v
v
. S
S
outham
90 • Understanding Section 8: Search, Seizure, and the Canadian Constitution
teria identified in it. (Hunter will be addressed in the section “Is the Law
Authorizing The Search Reasonable?”)
A. AUTHORIZED BY LAW
As at common law,6section 8 of the Charter requires that the state have spe-
cific legal authorization, derived either from a statute or the common law,
to conduct a search or seizure. The court must ensure that all the statutory
or common law prerequisites to the exercise of a search power were fulfilled
before the search can be considered reasonable and “authorized by law.”7If
there is no legal authorization for the search, or if the statutory or common
law requirements for the search were not fully met, then the search will be
deemed to be unreasonable.8
For example, the seizure by police of a blood sample in the absence of
specific authority was held to be unlawful in R. v. Colarusso,9even though
the sample was originally seized (lawfully) by the coroner. Although the
Coroner’s Act10 authorized the seizure of the blood sample by the coroner, the
police required prior authorization relating to the criminal investigative pur-
pose for which they seized the sample. Similarly, in R. v. Dyment,11 the col-
lection of free-flowing blood from an unconscious victim by a doctor for
medical purposes did not enable the police to seize the blood from the doc-
tor, without a warrant, for a non-medical (criminal investigation) purpose.
The consent deemed to have been given by the victim for medical treatment
was considered by the court to be “restricted to the use of the sample for
medical purposes.”12
6Entick v. Carrington (1765), 19 State Tr. 1029 at 1066–67.
7 For example, in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at 187, Sopinka J.
held that the application of s. 8 of the Charter required the trial judge to ensure
statutory compliance with the preconditions for issuing an authorization for a
wiretap interception; previously, by virtue of R. v. Wilson (1983), 9 C.C.C. (3d) 97
(S.C.C.), reviewing courts were precluded from assessing the authorizing judge’s
decision that the statutory preconditions for a wiretap authorization were satisfied.
8Collins, above note 3 at 14; R. v. Law (2002), 160 C.C.C. (3d) 449 (S.C.C.); R. v. Inco
Ltd. (2001) 155 C.C.C. (3d) 383 (Ont. C.A.) at 397.
9R. v. Colarusso, [1994] 1 S.C.R. 20.
10 R.S.O. 1980, C. 93 (now R.S.O. 1990. c. C. 37).
11 R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.) [Dyment].
12 Ibid. at 431.
1) Specific Powers of Search and Seizure
The charts in the appendices to this book outline the statutory search and
seizure powers set out in the Criminal Code and select related statutes, and
the various requirements necessary in order to validly resort to those powers.
Note that certain authorizations are fairly broad in scope while others are
narrowly tailored to apply in specific circumstances for limited purposes.
2) Interpreting the Scope of Statutory Search and Seizure
Powers
a) The Scope of Statutory Powers: anadianOxy C
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anada
In CanadianOxy Chemicals v. Canada,13 the Supreme Court provided guid-
ance on interpreting whether statutory provisions authorize a particular
search or seizure in the criminal context. The Court was tasked with deter-
mining the scope of section 487(1)(b) of the Criminal Code, which permits a
justice to authorize the seizure of evidence of the commission of an offence.
At issue was whether the section also permitted officers to seize evidence
related to a possible “due diligence” defence to a charge of dumping pollu-
tants in a waterway.
The Court held that it was necessary to examine the purpose of the
statute itself (the Criminal Code), in order to gauge the scope of its provi-
sions. The Criminal Code, as with other penal statutes, was found to have the
promotion of “a safe, peaceful and honest society” as its purpose, which is
achieved in part through the “prompt and comprehensive investigation of
potential offences.”14 Given the statute’s purpose, the Court held that its
search and seizure provisions should be broadly interpreted to allow inves-
tigators to unearth as much evidence as possible, without imposing undue
restrictions on their capability to gather relevant evidence:
The purpose of s. 487(1) is to allow the investigators to unearth and pre-
serve as much relevant evidence as possible. To ensure that the authorities
are able to perform their appointed functions properly they should be able
to locate, examine and preserve all the evidence relevant to events which
may have given rise to criminal liability. It is not the role of the police to
investigate and decide whether the essential elements of an offence are
made out — that decision is the role of the courts. The function of the
police, and other peace officers, is to investigate incidents which might be
13 CanadianOxy Chemicals Ltd. v. Canada (1998), 133 C.C.C. (3d) 426 (S.C.C.) [Cana-
dianOxy].
14 Ibid. at para. 20.
Determining Reasonableness: The Collins Test and Hunter v. Southam • 91
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