Warrantless Overseizure Under Section 489

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General Principles

See also: Plain View Search and Seizure

Section 489 authorizes police officers to seize certain property. Section 489(1) relates to the scenario where the officer is executing a search warrant. Section 489(2) relates to the scenario where the officer is simply in execution of their duties. It specifically addresses the situation where police seek to seize property other than what is specified in a warrant.

Seizure of things not specified

489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
Seizure without warrant

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

R.S., 1985, c. C-46, s. 489; R.S., 1985, c. 27 (1st Supp.), s. 72, c. 42 (4th Supp.), s. 3; 1993, c. 40, s. 16; 1997, c. 18, s. 48.

CCC


Note up: 489(1) and (2)

Requirements for 489

Under s. 489, a peace officer in lawful execution of their duty may seize anything without a warrant that they have reasonable ground believe that it was:[1]

  1. obtained by crime;
  2. used in a crime; or
  3. affords evidence of a crime.

The provision permits an officer who is executing a warrant to make a warrantless seizure of anything he believes on reasonable grounds "has been used in the commission of an offence".[2] The legal test for reasonable grounds to believe should be the same as that for Warrantless Arrests. It must involve "an objective basis for the belief which is based on compelling and credible information". It is "something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities".[3]

Section 489(2)(c) is a "self-contained provision". To rely upon it, the Crown must prove that "that the officer be lawfully placed and in execution of his duty, with a belief on reasonable and probable grounds that the seized items are evidence."[4]

Overseizure vs Plain view

This section does not codify or incorporate any part of the common law doctrine of "plain view".[5] Not all the elements of the plainview doctrine need to be met to allow for seizure under s. 489(2).[6]

Effect of Provision

Section 489(2) does not authorize any search but it does have the effect of expanding seizure powers pursuant to a search warrant to include other materials.[7]

Section 489 permits the seizure of certain evidence, however, when dealing with evidence such as a cell phone, the phone may be seized but a warrant would be needed in order to search the contents of the phone.[8]

The power should not be used as a "carte blanche to embark on a search for whatever [the police] wish" nor can they seize "everything within reach" while executing a warrant.[9]

Purpose

The purpose of s. 489(2) is the preservation of evidence.[10]

Section 489 allows for the collection of evidence for a separate crime while executing a search based on an initial believed crime.[11] It does not require that the evidence discovered to be related to the initial investigation.[12]

  1. R v Fawthrop, 2002 CanLII 45004 (ON CA), per Borins JA, at para 23
  2. R v Bishop, 2013 BCSC 522 (CanLII), per Bruce J, at para 179
    R v Sipes, 2011 BCSC 1763 (CanLII), per Smart J, at para 203
  3. see Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 SCR 100, per curiam, at para 117
  4. R v Makhmudov, 2007 ABCA 248 (CanLII), per curiam, at para 19
    see also Sipes, supra, at para 204
  5. R v Bottineau, 2011 ONCA 194 (CanLII), per curiam
    R v Le (T.D.), 2011 MBCA 83 (CanLII), per Scott CJ - they are not "coextensive"
    R v RMJT, 2014 MBCA 36 (CanLII), per Cameron JA
    cf. R v Boudreau-Fontaine, 2010 QCCA 1108 (CanLII), per Pelletier JA, at para 50
    R v L’Espérance, 2011 QCCA 237 (CanLII), per Rochette JA, at para 36
  6. R v Frieburg (T.), 2013 MBCA 40 (CanLII), per Beard JA, at para 67
  7. Bottineau, supra, at para 74
  8. R v Little, 2009 CanLII 41212 (ON SC), per Fuerst J, at para 144
  9. see Little, ibid.
  10. RMJT, supra, at para 32
  11. R v Middleton, 2000 BCCA 660 (CanLII), per Finch J - standard search warrant executed for theft of electricity. when grow-op found, no need to get a second CDSA search warrant
  12. RMJT, supra

After Initial Seizure

See also: Procedure on Seizure of Property

History of s. 489

Section 489 was enacted in 1955 as s. 431 of the Criminal Code S.C. 1953-1954, c. 51. It previously read:[1]

Every person who executes a warrant issued under section 429 may seize, in addition to the things mentioned in the warrant, anything that on reasonable grounds he believes has been obtained by or has been used in the commission of an offence, and carry it before the justice who issued the warrant or some other justice for the same territorial division, to be dealt with in accordance with section 432.

  1. see R v Sipes, 2011 BCSC 1763 (CanLII), per Smart J, at para 192 onward

See Also