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SEARCH WARRANTS - MINIMUIM REQUIREMENTS

Hunter et al. v. Southam Inc., [1984] 2 SCR 145  CLII

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Pursuant to s. 10(1) of the Combines Investigation Act, the Director of Investigation and Research of the - Combines Investigation Branch authorized several Combines Investigation officers to enter and examine documents and other things at a respondent’s business premises in Edmonton “and elsewhere in Canada”. The authorization was certified by a member of the Restrictive Trade Practices Commission pursuant to s. 10(3) of the Act. The Canadian Charter of Rights and Freedoms was proclaimed after the authorization was made but before the actual search had begun.

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The Canadian Charter of Rights and Freedoms is a purposive document, the provisions of which must be subjected to a purposive analysis. Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented.


It is not enough that a determination be made, after the fact, that the search should not have been conducted. This can only be accomplished by a requirement of prior authorization. Accordingly, prior authorization, where feasible, is a precondition for a valid search and seizure.


It follows that warrantless searches are prima facie unreasonable under s. 8. The party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness.


Section 10(3) of the Combines Investigation Act provides for prior authorization of searches by a member of the Restrictive Trade Practices Commission. The procedures established by s. 10(3), however, are constitutionally defective in two respects.


First, for the authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able to assess the conflicting interests of the state and the individual in an entirely neutral and impartial manner. This means that while the person considering the prior authorization need not be a judge, he must nevertheless, at a minimum, be capable of acting judicially. Inter alia, he must not be someone charged with investigative or prosecutorial functions under the relevant statutory scheme.

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Second, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing searches and seizures.

Jim O'Neil, LL.B.

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