Summary of Essential Principles

• Author: Susanne Boucher & Kenneth Landa
• Pages: 301-303

Like many areas of law, the jurisprudence in the area of search and seizure

seems to be subject to constant change. However, despite this fluidity, a core

set of basic principles underlies the case law. We have attempted to illumi-

nate these principles throughout this book. The following is a brief summa-

ry of the Canadian courts’ general approach to determining the constitutional

validity of a search or seizure:

1.The overarching issue to be resolved in an allegation of an unreason-

able search is a balancing of interests: the “reasonableness” of a govern-

ment intrusion is determined by balancing an individual’s privacy

interests against the state’s particular goal in intruding on privacy, and

the manner in which the intrusion is conducted.1

2.Generally speaking, the applicant seeking to have evidence excluded bears

the burden of proving that the evidence should be inadmissible. If the

search was not authorized in advance by way of an investigative order, the

burden will shift to the prosecution to prove that the evidence ought to

be admitted.2

1Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) [Hunter] at 108.

2Although that is the general rule, it does not apply when the warrantless search is

a type recognized as prima facie reasonable by the common law, such as a search

incident to arrest or a search conducted at a school. In such cases, the burden

remains on the Applicant to justify exclusion. See R. v. Golden, [2001] 3 S.C.R. 679

and R. v. M.(M.R.), [1998] 3 S.C.R. 393.

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Summary of Essential Principles