I apologize. You are right. It's one step before what I suggested.
I'm just deciding if another point I want to raise is perhaps better raised in the discussion of the production order itself. Maybe I'll save that.
I want to raise my view on the idea of the standard within.... I'm sorry. I'm getting the standards confused. I'm going to say belief versus suspicion just for shorthand. Why is belief versus suspicion important under section 8? My understanding is that the belief standard means that you have to think not only that a crime has been committed but that there's objective evidence in the place you want to look. You have to have an objective basis from which to say that as well. I think that's important.
I want to go back to the genesis of this. Like Ms. Sullivan, I had to go back to some basics with Hunter v. Southam. To me, this is the starting point, and it's why I think the standard should be higher, because it encapsulates.... I'm not going to read the whole case, but there are two key paragraphs that I want to put on the record for my view on the importance of the higher standard, whether for the first step or the second step.
By way of background, if you remember, that case was about an anti-combines organization, as it was called, which is an olden times word for an antitrust, anti-competition organization. It was investigating a newspaper. The general details, as I recall them from my notes, are that they could give themselves their own power to enter and get information. In reviewing whether the warrant to go into Southam's office was an unreasonable search and seizure under section 8, which had just come in—it was one of the first cases—the court took some time to explain the objective portion of section 8.
I want to put on record the two important paragraphs for me, which talk about that objective criterion. The court said the following:
The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant's reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.
Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave “strong reason to believe”—
That's a reference to Entick v. Carrington, which is based on entering someone's property.
—that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is “reasonable ground to believe” that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation...” The phrasing is slightly different but the standard in each of these formulations is identical. The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.
For me, that encapsulates in summary why I fall on that side of the spectrum. Whether it's the first step of the investigation or the second, we have to have a credibly based probability over just suspicion. Suspicion is just a hunch.
Go ahead.
