ABSTRACT
The warrant is a document by which searches of premises are judicially authorised and legitimated. As has been outlined in the introductory chapter, the oppressive historical reputation of these authorisations led to constitutional conflict during the seventeenth and eighteenth centuries both in the United Kingdom and in the United States. The eventual outcome of these conflicts was that the common law judges succeeded in imposing strict constraints upon the circumstances when a warrant might issue and required that the issuance itself to be a judicial act.1 Because of the fetters placed upon the granting of warrants, certain common law jurisdictions came to view the warrant procedure as a due process safeguard rather than as a coercive means of obtaining incriminating evidence through an exceptional intrusion into a person's privacy. The inexorable product of this hypothesis is that all searches by warrant are considered to be 'good' and all searches without warrant are 'bad'. This theory is most evident in the rhetoric of the United States' Supreme Court in cases such as Coolidge v New Hampshire} where it was stated that, as a general proposition, warrantless searches were unreasonable.3 A similar doctrine is evident in Canada where the seminal case of Hunter v Southam Inc.* stated that the absence of a warrant makes a search prima facie unreasonable. It is then for the Crown to establish that it is none the less reasonable and, as stated in chapter 2, pre-existing common law or statutory powers of search will not necessarily survive scrutiny under section 8 of the Canadian Charter.
