Under the Criminal Code of Canada, in order for a judge to issue a warrant, including a search warrant, he or she must have probable cause. A police officer must also have probable cause to conduct a valid search.

In making a determination about probable cause, the police officer must consider the totality of circumstances (i.e., all of the circumstances available to him or her at the time). If a court issues a warrant without the necessary probable cause, it may ultimately be deemed invalid. In that case, a court should exclude any evidence discovered as a result of the improperly issued warrant from the criminal trial. If you are currently facing a serious criminal charge in Calgary, the experienced lawyers at Bourdon Defence may be able to help. Our legal team can examine the circumstances and facts of your case and determine whether or not the necessary probable cause was in place at any given time.

Legal Definition

Authorities determine probable cause by considering all of the facts and circumstances available. In order for probable cause to exist, these facts and circumstances must lead a police officer or other investigator to believe that criminal activity is afoot. Moreover, the facts and circumstances must suggest that the person or persons under investigation actually committed the crime. Probable cause uses the ‘reasonable person’ standard, which is an objective standard. In the context of probable cause, a reasonable person is a hypothetical ordinary person who would account for all of the facts and circumstances surrounding a crime and which are available. Therefore, if a hypothetical reasonable person would have believed that the person under investigation actually committed the crime, then probable cause would likely exist to search his or her vehicle or home.

Reasonable Suspicion

Unlike probable cause, authorities often base reasonable suspicion on a hunch that criminal activity is afoot, rather than upon hard-and-fast facts. For example, a missing taillight on a vehicle is likely enough reasonable suspicion for a police officer to pull that vehicle over. However, in order to search the vehicle, the officer must establish probable cause somewhere along the line. For example, the officer may see drugs or drug paraphernalia in plain view inside the vehicle, or a drug dog may “alert” near the vehicle, signalling the presence of drugs inside the vehicle. In those instances, the officer may be able to search the car because the reasonable suspicion developed into probable cause.

Talk to a Calgary Criminal Defence Lawyer Today

The question of whether or not probable cause exists under certain circumstances is very fact- sensitive. If the evidence ultimately shows that probable cause did not exist, any evidence obtained from the search could be deemed inadmissible, and the case may be subject to dismissal. At Bourdon Defence, our Calgary legal team will fully investigate the circumstances of your arrest and can present any legal defences in court. To schedule a free consultation and case evaluation with a criminal defence lawyer in Calgary, you should call us today at (403) 474-4143, or contact us online.