Section 487 Search Warrants

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

A search warrant for a "place" will generally give authority to also search places and recepticles in that place.[1]

The section states:

Information for search warrant
487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been* committed,
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or
(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

...
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11.
* [see below re Constitutionality]
[annotated]


CCC

Computer Searches
Computers are an exception to the receptacle rule as they are "to a certain extent" a separate place that require a separate authorization.[2] This is because of the high degree of privacy that exists in a home computer and the immense amount of information that they can contain, including information that is automatically generate by the user's activities, and the enduring nature of the data.[3]


  1. R v Vu, 2013 SCC 60 (CanLII) at para 39
  2. Vu at paras 51, 54, 39, 46, and 47
  3. Vu at paras 40 to 43

Purpose of Search

The purpose of s. 487 warrants is the "allow the investigators to unearth and preserve as much relevant evidence as possible" by authorizing them "to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability".[1]

  1. CanadianOxy Chemicals Ltd. v Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743 at para 22

Test to Authorize a Search

See also: Reasonable and Probable Grounds

Section 487(1) requires that the "justice" be "satisfied by the information on oath" that there are "reasonable grounds to believe" that:[1]

  • there is a thing in a "building, receptacle or place";
  • the thing is:
    • "on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed",
    • that for which "there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,"
    • that for which "there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant"
    • "offence-related property"

487Warrant.png

The warrant provisions of the Criminal Code also applies to all other federal statutes even those with search provisions. [2]

A warrant under section 46 (1) (B) cannot authorize the search and seizure of "things… that are being sought as evidence in respect of… suspected commission or intended commission of an offense…"[3]

Medical staff who inform the police of the existence of a blood sample taken from the suspect patient is not violating confidentiality of medical records.[4]

  1. see also R v Ha, 2009 ONCA 340 (CanLII)
    Canadian Broadcasting Corp. v Lessard, 1991 CanLII 49 (SCC), [1991] 3 SCR 421
  2. R v Multiform Manufacturing Co., 1990 CanLII 79 (SCC), [1990] 2 SCR 624
  3. R v Branton, 2001 CanLII 8535 (ON CA)
  4. R v Decap, 2003 SKQB 301 (CanLII)

"Thing" to be Searched For

A search warrant can only be used to seize tangible objects. This means that intangibles, such as money, are not applicable.[1]

Such a warrant however cannot be used to search a person or seize anything on a person.[2]

Finger prints cannot be taken with a 487 warrant.[3]

A bullet found inside an accused person cannot be included.[4]

A standard warrant may be used to seize a disposed bandage in order to perform a DNA test on it. DNA warrant is not necessary.[5] However, where the bandage is still being warn at the time there is suggestion that a 487 warrant would not be valid and a DNA warrant would be the correct route.[6]

A warrant may be used to seize blood vials taken from the accused. There is no need to exhaust other options such as making a blood demand first.[7]

The motor vehicle can be the thing to be searched for or the place to be searched, Depending on the circumstances. Where it is the thing to be searched for,, it can be seized by police and then subject to any examinations necessary. where is the place to be searched, it must be returned to the older immediately on completion of the search.[8]

  1. R v Bank du Royal Du Canada (1985) 18 CCC (3d) 44(*no link)
  2. R v Legere, 1988 CanLII 129 (NB CA)
  3. R c Bourque, 1995 CanLII 4764 (QC CA)
  4. R v Laporte (1972) 8 CCC (2d) 343(*no link)
  5. R v Kaba, 2008 QCCA 116 (CanLII) at para 32
  6. R v Miller, 1987 CanLII 4416 (ON CA), (1987) 62 O.R. (2d) 97, 38 CCC (3d) 252, - bandage not permitted while person is wearing it
  7. R v O’Brien, 2005 CarswellOnt 10009, aff’d 2007 ONCA 138 (CanLII)
  8. R v Rafferty, 2012 ONSC 703 (CanLII) at para 48

"Building, Receptacle or Place" to be Searched

Section 487 permits the search of "a building, receptacle or place".

A computer can be a "thing" and not a "place" within the meaning of s. 487.[1]

  1. R v Barwell [2013] O.J. No. 3743 (C.J.)(*no link) per Paciocco J.
    c.f. R v KZ, 2014 ABQB 235 (CanLII)

Relationship Between "Thing" and Offence

Section 487 sets out four types of relationships between the thing to be searched for and seized and the offence investigated. They are:

  1. "anything on or in respect of which an offence ... has been ... committed" (s. 487(1)(a))
  2. "anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence..." (s. 487(1)(b))
  3. "anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant" (s. 487(1)(c))
  4. "any offence-related property" (s. 487(1)(c.1))

Constitutionality
The clause "suspected to have been" made in s. 487(1)(a) is likely to be found unconstitutional and should be read out of the section.

"Will Afford Evidence"

The phrase "will afford evidence" is treated as interchangable with "may be obtained", "could be obtained", "will be obtained", and "may afford evidence". They all will require "credibility based probability" that the thing sought will be found.[1]

  1. R v Brand and Ford, 2006 BCSC 305 (CanLII), at para 28, 32 to 33

Power to Order

Section 487(1) permits the justice, once satisfied he is able to authorize a search warrant, may order a "peace officer" to "search the building, receptacle or place for any such thing and to seize it", and, "as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice".

Content of the 487 Warrant

A the body of the warrant must meet several requirements to be facially valid. There must be:[1]

  • an authorized officer;
  • an authorized device, investigative technique, procedure, or act; and
  • private property to be searched or seized

The sufficiency of the description of the place must be assessed based on the face of the warrant, separately from the contents of the ITO or the manner it was executed.[2] Failure to name a place on the warrant "is not a mere matter of procedural defect, but so fundamental as to render the document of no legal effect."[3]

There is no need to specify the identity of the suspect, and simply refer to them as "persons unknown".[4]

Name of Authorized Officer
A warrant under 487 and 487.1 need not state in the body of the warrant the identity of the officer authorized to execute the search. Failure to do so will not be fatal.[5]

Types of Devices to be Searched
Where a warrant authorizes a residential search for documents without mention of whether computers are included, may still permit the officers to search computer equipment so long as they are only searching for the documents authorized by the warrant. No special mention of computers is needed.[6]

Premises to be Searched
A search warrant must specify the premises that is to be searched.[7]

A warrant of a premises must accurately describe the location to be searched. If it fails to do so the warrant will be invalid.[8]

If the address in the warrant is wrong, the search becomes warrantless.[9]

See also: Information to Obtain a Search Warrant#Error in Address

  1. see language of s.487.01
  2. R v Parent, 1989 CanLII 217 (YK CA) - no address whatsoever on warrant, but address present in ITO
  3. Parent
  4. R v Sanchez, 1994 CanLII 5271 (ON SC)
  5. R v Lucas, 2009 CanLII 43418 (ON SC), [2009] OJ No. 5333 (Ont Sup Ct J) at paras 9 – 12
    R v Benz, (1986), 27 CCC (3d) 454 (Ont. C.A.)(*no link)
    R v KZ, 2014 ABQB 235 (CanLII)
  6. R v Vu, 2011 BCCA 536 (CanLII)
  7. s. 487(1)
    R v McGregor (1985), 23 CCC 266 (QB)(*no link)
  8. Re McAvoy (1970), 12 C.R.N.S. 56 (NWTSC)(*no link) at para 57 ("To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant ... fails to accurately describe the premises to be searched ... then it will be invalid")
  9. see R v Krammer, 2001 BCSC 1205 (CanLII), [2001] BCJ No. 2869 (S.C.)
    R v Silvestrone, 1991 CanLII 5759 (BC CA), (1991), 66 CCC (3d) 125 (BCCA), at pp. 130-132

Manner of Search

See also: Execution of Search Warrants and Special Search Warrant Issues

Lawyer's Office

See also: Law Office Searches

When searching a lawyer's office, the police have a duty to minimize which requires:[1]

  1. that a search not be authorized unless there is no other reasonable solution and,
  2. that the authorization be given in terms that, to the extent possible, limit the impairment of solicitor-client privilege
  1. Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193

Computer Search

If a computer is found during a search under a warrant does not authorize the search of a computer, it can be seized until a computer search warrant is obtained.[1]

When searching a computer, the manner of the search must be "reasonable" which prevents police from having "licence to scour indiscriminately".[2]

When a computer warrant search is conducted on the basis of one charge and evidence of a second charge is discovered, a further warrant should be sought.[3] Where evidence of an unrelated offence is discovered, the proper procedure is to apply for a search warrant and not a general warrant.[4]There is nothing wrong with getting a second search warrant for a device that has already been seized and searched.[5]

  1. R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII), at para 49
  2. Vu, ibid. at para 61
  3. R v Jones, 2011 ONCA 632 (CanLII)
    R v Vu, 2011 BCCA 536 (CanLII)
  4. R v KZ, 2014 ABQB 235 (CanLII), at para 32
  5. KZ, ibid. at para 40

See Also