What is the legal test for obtaining a search warrant under s. 98 of the Criminal Code?

Ontario, Canada


The following excerpt is from R. v. Monney, 1997 CanLII 979 (ON CA):

Moreover, while the standard in s. 98 is the same as in former s. 143, namely reasonable suspicion, the additional safeguard of the possibility of independent review by a judicial official is lacking. The only provision for review in s. 98 is that set out in paragraphs (2) and (3) whereby the traveller can request a review by the senior officer of the port. I do not think it could be suggested that the senior officer of the port can act in an "entirely neutral and impartial manner" in the manner envisaged by Hunter v. Southam Inc. at p. 162. Further, it is not apparent that it is not feasible to obtain a warrant in the circumstances. Most of the procedures contemplated would require that the suspect be removed from the airport, resulting in some delay. It is highly desirable that this kind of intrusive search be conducted, where possible, under a warrant with conditions as the justice or judge may deem necessary.[3]

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