Summary of Essential Principles

AuthorSusanne Boucher & Kenneth Landa
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.
2 Although 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.
chapter 10
Summary of Essential Principles

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