When the Swedish police ring the doorbell, are their Canadian colleagues in the hallway? - A study of Swedish and Canadian search and seizure law
Abstract: This thesis aims at presenting the differences and similarities between the Swedish and Canadian legal system, by means of search and seizure regulations. In doing this I hope to provide the readers, whether it is a Swede or a Canadian, with a perspective on their own legal system. In the limited time and space offered for the completion of this thesis, I had to choose one specific area of law to research. The focus is on the regulations regarding searches of homes and the consequences of unlawful searches. In order to help the reader understand the differences and similarities it has been necessary to include an overview of the two legal systems. The title of my thesis acquired its name because of the common misconception that Canadian police are identical to their American colleagues regarding their view on crime prevention. There are many cases of the Canadian police making mistakes we may not see in Sweden, but on the other hand, there is an incentive in Canada to look for the mistakes the police make because of the possible exclusion of evidence. The biggest difference is the Swedish and Canadian view on what should be the consequences of unlawful searches. In Sweden, citizens who have been treated unfairly or wrongly by the public authorities can complain to the Parliamentary Ombudsmen, JO. Every year JO receives about 6 000 complaints and reviewing the complaints is the main task of each of the JO. JO only reviews the manner in which decisions and judgements are made and JO cannot change a decision or judgement. In the majority of cases, an inquiry ends with criticism from JO and even though it is not binding to the public authorities, in most cases it will have an effect, such as improved staff training or a change of procedures. A public authority employee can be charged with misuse of office. Every year JO charge one or two employees with misuse of office. Swedish citizens can also sue for damages under tort law. However, there are no specific remedies available to the accused not to have the unlawfully obtained evidence excluded at the trial. In Canada, the question of unlawful or unreasonable searches is an area of law that has undergone big changes since the enactment of the Canadian Charter of Rights and Freedoms. The Charter provided the courts with a possibility to exclude evidence if it had been obtained in violation of the Charter. It is not sufficient that evidence has been found due to an unreasonable search, there are a number of tests to pass in order to exclude evidence at the trial. If an exclusion of evidence would bring the administration of justice in disrepute, the evidence should not be excluded. The more serious the violation is, the greater the risk of the evidence being excluded at trial.
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