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R. v. Collins, [1987] 1 S.C.R. 265

Facts:

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.

Issue(s):

Was the search unreasonable under s.8 of the Charter?

Ratio:

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.

Analysis:

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.

Holding:

Search was unreasonable because unlawful and carried out with unnecessary violence.

Comments:

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


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