Warrantless Search in Exigent Circumstances

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95949)

General Principles

A warrantless search or seizure is presumptively unreasonable. However, where there are "exigent circumstances", a police officer may forego the requirement of a search warrant. The requirements for seizure under exigent circumstances are:[1]

  1. there is imminent threat to the public or public safety; or
  2. a risk of loss or destruction of evidence.

The Courts have long recognized that the protections of s. 8 are "circumscribed by the existence of the potential for serious and immediate harm." Exigent circumstances "inform the reasonableness of the search...and may justify the absence of prior judicial authorization."[2]

This rule has been codified in s. 487.11 of the Criminal Code:

Where warrant not necessary

487.11 A peace officer, or a 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, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) [territorial search warrants – requirements] or 492.1(1) [tracking warrants – transactions and things] without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
1997, c. 18, s. 46.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.11

The Crown must present an "evidentiary basis" to establish the underlying police safety concerns.[3]

Similar exigent circumstances clauses exist in s. 49.1(4) of the Fisheries Act, R.S.C. 1985, c. F-14, s. 49.1(3), and s. 220(4) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c.33.

United States Context

In the US, there exists an exception to their Fourth Amendment against residential entries in the context of the officer believing "that a person within is in need of immediate aid."[4]

  1. ↑ R v Paterson, 2017 SCC 15 (CanLII), [2017] 1 SCR 202, per Brown J, at paras 32 to 33
    R v Tontarelli, 2009 NBCA 52 (CanLII), [2009] NBJ No 294, per Drapeau CJ (requires an "imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed")
  2. ↑ R v Tse, 2012 SCC 16 (CanLII), [2012] 1 SCR 531, per Moldaver and Karakatsanis JJ
  3. ↑ R v Davis, 2012 ABPC 125 (CanLII), [2012] AJ No 488 (P.C.), per Lamoureux J, at para 23
  4. ↑ Brigham City v Stuart, 547 U.S. 398 (2006)
    Mincey v Arizona, 437 U.S 385, 392 (1978)

Established Exigent Circumstances

Protecting Evidence

Exigent circumstances can arise where there is imminent danger and immediate action is required to prevent the loss, removal, destruction or disappearance of evidence.[1]

The need to protect evidence will apply where:[2]

  1. there are sufficient grounds to obtain an authorization to seize the evidence;
  2. there are reasonable grounds to believe there is "imminent danger" evidence will be lost or destroyed if the eivdence is not seized promptly; and
  3. the delay to obtain an authorization would pose a "serious risk" to the ability to preserve evidence.
  1. ↑ James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89 ("immediate action is required ... to secure and protect evidence of a crime")
    R v McCormack, 2000 BCCA 57 (CanLII), 143 CCC (3d) 260, per Saunders JA, at para 21
    R v Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223, per Sopinka J, at para 32 ("Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed")
  2. ↑ R v Kelsy, 2011 ONCA 605 (CanLII), per Rosenberg JA, at paras 25 to 30
    R v Paterson, 2017 SCC 15 (CanLII), [2017] 1 SCR 202, per Brown J, at para 37

Protect Life and Public Safety

At common law, the police have a duty to protect life and ensure public safety which may authorize encroachment on otherwise protected privacy rights, including entry into private residences.[1] This power to intrude exists sole for the purpose of protecting life and safety, which includes locating "the ['unknown trouble' 911] caller and determine his or her reasons for making the call and provide such assistance as may be required". Once complete they must leave and cannot continue on a search of the premises.[2]

Police are always entitled to investigate any 911 calls, whether it extends to entry will depend on the circumstances.[3]

Police should look to alternative investigative methods other than performing a warrantless entry into a residence.[4]

The right to entry is not limited only to circumstances of 911 calls, but can include any circumstances of distress.[5]

The common law power to enter a premises under circumstances of distress requires that the judge consider:[6]

  1. Does the police conduct fall within the general scope of any duty imposed by statute or recognized at common law;
  2. Does the police conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty

Analysis must be of what were the known grounds at the time of the decision to enter into the premises.[7]

The police are not obliged to accept the word of any resident that "everything is fine" and are able to decide for themselves whether there is a risk to safety and life.[8]

911 Calls

This right to protect life is "engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined." [9]

  1. ↑ R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, per Lamer CJ
  2. ↑ Godoy, ibid., at para 22
  3. ↑ Godoy, ibid.
    R v Norris, 2010 ONSC 2430 (CanLII), per Stach J, at para 18
  4. ↑ R v Jones, 2013 BCCA 345 (CanLII), 298 CCC (3d) 343, per Neilson JA, at para 37
  5. ↑ R v Borecky, 2011 BCSC 1573 (CanLII), per Joyce J
    R v Nguyen, 2017 BCPC 31 (CanLII), per Rideout J, at para 74
    Norris, supra , at para 15
  6. ↑ Godoy, supra, at para 12
  7. ↑ Norris, supra, at para 19
  8. ↑ R v Rohani Moayed, 2013 BCPC 361 (CanLII), per Blais J, at para 98
  9. ↑ Godoy, ibid.

Serious Criminality

Police may also enter into a residence in a non-distress situation where they have reason to believe a potentially serious offence has occurred.[1]

  1. ↑ R v Johnston, 2014 NSSC 131 (CanLII), per Murray J, at paras 58 to 59

Entry of Dwellings and Other Buildings

Weapons Offences

See also: Seizure of Firearms

Drug Offences

See also: CDSA Warrants

In the context of a drug offence s. 11 of the Controlled Drugs and Substances Act provides that:

Information for search warrant

11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,
(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 [possession of stolen property] or 462.31 [money laundering] of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
[omitted (2), (3) and (4)]

Search of person and seizure

(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.

Seizure of things not specified

(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,

(a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened;
(b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a);
(c) any thing that the peace officer believes on reasonable grounds is offence-related property; or
(d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.
Where warrant not necessary

(7) A peace officer may exercise any of the powers described in subsection (1) , (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

Seizure of additional things

(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6) , any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence.

1996, c. 19, s. 11; 2005, c. 44, s. 13.
[annotation(s) added]

– Template:CDSASec2

Note up: 11(1), (5), (6), (7), and (8)

Section 11(7) is believed to be constitutional.[1]

Section 11(7) of the CDSA requires:[2]

  1. the necessary conditions to permit the granting of a warrant
  2. exigent circumstances that make getting the warrant impractical
  1. ↑ R v Paterson, 2012 BCSC 2138 (CanLII), per Blok J
  2. ↑ R v McCormack, 2000 BCCA 57 (CanLII), 143 CCC (3d) 260, per Saunders JA, at para 17

Wiretap

See Emergency Wiretaps

See Also

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