1) Authorized by law (statute or common law); AND
2) The law itself is reasonable; AND
3)The search is carried out in a reasonable manner.
RULING: 1. there was no evidence on reasonableness of belief to know whether it was
authorized by law (NCA) [part 1 of test]
2. no evidence that the manner of the search was reasonable [part 3 of test].
THEREFORE, the search was unreasonable and the drugs were obtained in violation of s. 8 of the
What happens to the heroin: would we admit the evidence anyway?
S. 24(2): Where … a court concludes that evidence was obtained in a manner that infringed or
denied any rights or freedoms … the evidence shall be excluded if it is established that, having
regard to all the circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.
Focus of analysis is on effect of admission of evidence
Not intended as remedy for police misconduct
Designed to prevent bringing the administration of justice into further disrepute by
admitting evidence obtained in violation of the Charter
Would the admission of evidence bring the administration of justice into disrepute in
the eyes of a reasonable person, dispassionate and fully apprised of the
circumstances of the case?
TEST FOR EXCLUSION OF EVIDENCE
i) what kind of evidence was obtained? (real vs. conscriptive evidence)
ii) what Charter right was infringed?
b) Seriousness of the Charter violation
i) was Charter violation serious or of a merely technical nature?
ii) could evidence have been otherwise obtained?
iii) deliberate/wilful/flagrant vs. inadvertent/good faith?
iv) circumstances of urgency or necessity?
v) other investigatory techniques available?
c) Effect of Exclusion
i) is the offence serious?
ii) is the evidence essential to Crown’s case?
Hunter v. Southam (1984, S.C.C.)
FACTS: investigation under the Combines Investigation Act of the Edmonton Journal; Director of
Investigations authorized officers to search the premises of Edmonton Journal (in Edmonton and
elsewhere in Canada) and “examine anything thereon and copy or take away for copying any book,
paper, record or other document that in your opinion may afford evidence”
Search under “authorized” s. 10 of the CIA
s. 10(1) – in any inquiry under this Act the Director… or any representative… may
enter any premises on which the Director believes there may be evidence relevant to the matters
being inquired into…