ABSTRACT
A search (whether electronic or physical) is effected by investigators in order to obtain evidence against a person. Given that 'probable cause' must exist before a warrant is issued or an interception order made in respect of a target, the objective of the search is clearly to firm up that probable cause into a provable case against the suspect. The likely consequence of a search that results in the incrimination of the target is his conviction for offending, revealed or confirmed as an outcome of the search. To such a target, any incidental violation of his personal autonomy or privacy may well be of less significance than the utilisation of this evidence in proceedings against him. Thus, although any improper or illegal search may give rise to a theoretical claim that Article 8 of the Convention on Human Rights has been broken, or that there has been an unreasonable search and seizure under the Fourth Amendment or section 8 of the Canadian Charter, an accused is more concerned with whether the use of such evidence is adjudged to render his trial unfair. The debate therefore shifts from privacy to due process.
