Warrantless Search in Exigent Circumstances

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General Principles

Where there are "exigent circumstances", a police officer may forego the requirement of a search warrant. This typically applies in the non-investigative context where there is a risk to safety of the officer or a member of the public. It also applies where there is imminent danger of loss, of evidence.[1]

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) or 492.1(1) 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.


CCC

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 Tontarelli, 2009 NBCA 52 (CanLII), [2009] NBJ No 294 (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)
  3. R v Davis, 2012 ABPC 125 (CanLII), [2012] A.J. No. 488 (P.C.) at para 23
  4. Brigham City v Stuart, 547 U.S. 398 (2006)
    Mincey v Arizona, 437 U.S 385, 392 (1978)

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]

  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), at para 21
    R v Grant, 1993 CanLII 68 (SCC) at para 32 at Sopinka J. ("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")

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
  2. Godoy, ibid. at para 22
  3. Godoy, ibid.
    R v Norris, 2010 ONSC 2430 (CanLII), at para 18
  4. R v Jones, 2013 BCCA 345 (CanLII) at para 37
  5. R v Borecky, 2011 BCSC 1573 (CanLII)
    R v Nguyen, 2017 BCPC 31 (CanLII) 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) 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]

Entry of Dwellings and Other Buildings

Weapons Offences

Under s. 117.02, police may effect a warrantless search of a person, vehicle or non-dwelling house for weapon-related items where they have reasonable grounds to believe and "offence is being committed, or has been committed" that involves a weapon-related item, and there are exigent circumstances.

Section 117.02 states:

Search and seizure without warrant where offence committed
117.02 (1) Where a peace officer believes on reasonable grounds

(a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or
(b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,

and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.
Disposition of seized things
(2) Any thing seized pursuant to subsection (1) shall be dealt with in accordance with sections 490 and 491.
1995, c. 39, s. 139.


CCC

Under 117.04(2), an officer may search for and seize weapon-related items where it is in the "interests of the safety".

Section 117.04(2) states:

Search and seizure without warrant
(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
...
1995, c. 39, s. 139; 2004, c. 12, s. 3.


CCC

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

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 or 462.31 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.
...
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.


CDSA

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),
  2. R v McCormack, 2000 BCCA 57 (CanLII), at para 17

Wiretap

See Emergency_Wiretaps

See Also