Nothing Plus Nothing Equals... Something? A Proposal for FLIR Warrants on Reasonable Suspicion

Steve Coughlan

Abstract


Over a series of decisions, the Court has been backing itself into a corner with its section 8 jurisprudence. Section 8 protects against unreasonable searches. Since the earliest ruling on the section in Hunter v. Southam} searches are prima facie unreasonable if they take place without a warrant. Thus, before conducting a search, police must have a warrant. Before getting a warrant, police must have information about the accused. Obtaining information about the accused probably involves conduct that qualifies as a search. Thus for example in K. v. Kokesch, R. v. Wiley, and R. v. Plant, perimeter searches, conducted in order to get grounds for seeking a warrant, were themselves warrantless searches which violated s. 8. In order to get warrants to conduct those searches, police would need already to have reasonable grounds to believe that the search would produce evidence. That evidence in turn would have to consist of personal information likely to invoke a reasonable expectation of privacy. Barring reliable unsolicited tips arriving at the police station, this regression is potentially endless.

Keywords


Criminal Law; Evidence

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