Appellant had been under surveillance by 2 members of the RCMP. A police officer approached her in a pub, said he was a police officer, grabbed her throat and pulled her to the floor. The throat hold is used to prevent someone from swallowing drug. She has a bag of heroine in her hand. Officers did not have warrant for search.
Was the search unreasonable under s.8 of the Charter?
A search will be reasonable if, it is authorized by the law, the law must be reasonable, and if the manner in which was carried out is reasonable.
The appellant bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied.
Once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.
Search was unreasonable because unlawful and carried out with unnecessary violence.
Collin test used in common law system – not where warrant are concerned, there you use Hunter v. Southam
Hunter v. Southam and Collins
1.Warrantless search prima facie unreasonable (onus falls on police if they don’t have a warrant to prove it was reasonable)
2.Reasonable search – 3 elements
**a.Authorized by law
**b.Law is reasonable
***i.Is a warrant reasonable?
****1.Issued before search
****2.Issued by some acting judicially not someone performing administrative or investigative purpose
****3.Based on sworn evidence
****4.Based on reasonable and probable grounds
**c.Search conducted in reasonable way