Execution of Search Warrants

From Criminal Law Notebook
Revision as of 20:17, 17 January 2023 by Admin (talk | contribs)
This page was last substantively updated or reviewed January 2023. (Rev. # 82400)

Scope of Search Warrant Powers

A warrant that authorizes a search of a location for a thing "confers on those executing that warrant the authority to conduct a reasonable examination of anything at that location within which the specified things might be found."[1]

Framed differently, an authorization to search a place generally permits searches of receptacles within that place.[2]

However, a residential warrant permitting the search of a residence cannot grant the authorization to search electronic devices. Devices found must be searched under authorization of another warrant or must be specially authorized by the residential warrant.[3] The "receptacle rule" does not apply.[4]

Once an officer enters a premises under a valid warrant during the specified time frame, the warrant remains operative until the search is complete and the officers leave.[5]

Officers conducting a search are entitled to "ensure a potentially volatile situation was under control" and during this time they are able to deny any detainee of their right to counsel.[6]

A search does not become unreasonable simply because, during the execution of the warrant, the police are anticipating to find evidence of other offences.[7]

A particular "method of search should only… be found to be unreasonable if that means that no lawful search has any real prospect of being effective."[8]

The reasonableness of a search will sometimes turn on "the amount of information the police must have before deciding how the search will be conducted, and the level of risk they must tolerate as a result of the way the searches conducted."[9]

Delivering a Copy of Warrant

When executing a s. 487 warrant it is required under s. 487.093 to give a copy of the warrant and a Form 5.1 to the person "ostensibly in control" of the place being searched. If no one is present, then the two documents must be affixed somewhere prominent.

Wearing Masks During Search

The wearing of masks by police officers will not render a reasonable search unreasonable and vice versa. [10]

Single Entry and Exit Rule

A search warrant only permits a single time entry into the place. The entry however may be for an extended period of time.[11]

"Fellow Officer test"

The scope of the search warrant should be discernible from the face of the text without the benefit of the ITO. The warrant should satisfy the "fellow officer" test which states that "a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant".[12]

Duration of Search

Once the police enter into the premises within the window of time specified by the warrant, the "warrant remains operative until the police complete their search and finally leave the premises."[13] The police may stay in the residence beyond the authorized time limit to finish their search.[14]

However, once the search is finished the police must leave immediately.[15] Once departed, the police may not re-enter without a new authorization.[16]

Officer Safety

While executing a search warrant the police may perform searches that are not authorized within the warrant for the purposes of officer safety.[17]

Providing Copies of Warrants Upon Execution

Under s.487.1(7), in executing a 487.1 telewarrant, the officer must provide a copy of the warrant to "any person present and ostensibly in control of the place or premises".

Under s.487.1(8), in executing a 487.1 telewarrant, the officer must affix a copy of the warrant at the place of residence should there be no one present at the time.

  1. R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at para 23
  2. Vu, ibid., at para 39
    J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (8th ed. 2010), at p. 1181
    e.g. R v E. Star International Inc, 2009 ONCJ 576 (CanLII), per Chisvin J, at para 17
    BGI Atlantic Inc v Canada (Minister of Fisheries and Oceans), 2004 NLSCTD 165 (CanLII), 717 APR 206, per Leblanc J, at paras 70 to 72
    R v Charles, 2012 ONSC 2001 (CanLII), 258 CRR (2d) 33, per Molloy J, at para 61
  3. Vu, supra, at para 24
  4. Vu, supra, at paras 24, 39
  5. R v Woodall, [1991] OJ No 3565 (Gen. Div.)(*no CanLII links) , aff’d [1993] OJ No 4001 (CA)(*no CanLII links)
  6. R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, per Dickson CJ
  7. R v Daigle, 1994 CanLII 214 (BC CA), [1994] BCJ No 2118, per Rowles JA, at para 21
    R v Yue, [1998] BCJ No 1619(*no CanLII links) , at para 5
  8. R v Cornell, 2009 ABCA 147 (CanLII), 243 CCC (3d) 510, per Slatter JA
  9. Cornell, ibid.
  10. Cornell, ibid. in obiter
  11. R v Finlay and Grellette, 1985 CanLII 117 (ON CA), 23 CCC (3d) 48, per Martin JA at p. 63
  12. R v Townsend, 2017 ONSC 3435 (CanLII), 140 WCB (2d) 240, per Varpio J, at para 53 ("As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the “fellow officer” test – that is, would a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant...")
    R v Rafferty, 2012 ONSC 703 (CanLII), OJ No 2132, per Heeney J, at para 103
  13. Rafferty, supra, at para 28
    "The law is clear that once the police enter the premises within the time frame specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises: R v XNli, Woodall..."
  14. Woodall, ibid., at paras 57 to 61 aff'd ONCA, at para 2
    R v Brown, 2010 ONSC 2280 (CanLII), OJ No 1678, per James J, at paras 17 to 23
    Rafferty, supra, at paras 26 to 28
    R v Gerlitz, 2013 ABQB 624 (CanLII), per Gates J, at paras 61 to 71
  15. R v Shin, 2015 ONCA 189 (CanLII), 322 CCC (3d) 554, per Gillese JA, at paras 24, 34, and 57
  16. Finlay and Grellette, supra, at p. 63
  17. R v Chuhaniuk, 2010 BCCA 403 (CanLII), 261 CCC (3d) 486, at para 55

Lawful Entry into a Dwelling House

Residual Search Powers During Execution

An officer may search an outbuilding on the property of the residence to be searched where it is part of a "security check."[1]

An officer may not search any person found with a residence to be searched unless there are specific grounds to do so.[2]

Nor can police arrest a person for simply being present inside a suspected drug house.[3] However, s. 11(5) of the CDSA permits searching where there is belief that person is holding drug related property.

Search of Vehicle During Residential Search

A vehicle parked across the street from a residence being searched pursuant to a warrant cannot be searched under that same warrant. [4]

  1. R v Chuhaniuk, 2010 BCCA 403 (CanLII), 261 CCC (3d) 486, per Frankel JA
  2. R v Thompson, [1996] OJ No 1501 (Ont.Ct.J.-Prov.Div.)(*no CanLII links)
    R v Mutch, 1986 CanLII 2963 (SK QB), CRR 310, 47 Sask R 122 (Q.B.), per Noble J
  3. R v Nguyen, 1999 CanLII 5099 (BC SC), per Levine J
  4. R v Frieburg, 2011 MBQB 58 (CanLII), 263 Man R (2d) 174, per Menzies J, evidence excluded under section 24 (2) for the search of a vehicle

Night Searches

Under s. 488 limits the use of night searches under the Criminal Code:

Execution of search warrant

488 A warrant issued under section 487 [territorial search warrants] or 487.1 [telewarrants] shall be executed by day, unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;
(b) the reasonable grounds are included in the information; and
(c) the warrant authorizes that it be executed by night.

R.S., 1985, c. C-46, s. 488; R.S., 1985, c. 27 (1st Supp.), s. 70; 1997, c. 18, s. 47.
[annotation(s) added]

CCC


Note up: 488


Defined terms: "day" (s. 2), "justice" (s. 2), and "night" (s. 2)

The terms "day" and "night" are defined in the Code under s. 2 and is divided at 6 am and 9pm respectively.

No Application to CDSA Warrants

The restrictions on night searches under s. 488 do not apply to searches authorized under s. 11 of the CDSA.[1]

Application to Provincial Warrants

Any authorization to search a premises under provincial legislation should comply with s. 488(b).[2]

Enhanced Privacy

A search of a house should be approached with the highest degree of privacy.[3]

"Exceptional circumstances"

A night search will only be granted in "exceptional circumstances."[4] Mere convenience is not enough.[5] The reason for a night search must be found in the text of the ITO to be valid.[6]

Consequence of Invalidity

A night search that does not comply with s. 488 is invalid and can be quashed. An invalid night search also violates s. 8 of the Charter.[7]

Evidence

A lack of evidence that the entry frightened anyone goes to a finding that the night search was not unreasonable.[8]

Errors in Warrant

If there are any errors in the warrant, the fact that it was a search that took place at night will exaggerate the defects.[9]

Reasonable grounds standard

Police do not need to establish the necessity for night search, rather just needs to be reasonable grounds.[10]

Considerations

The judge may only consider the circumstances known at the time that the warrant was issued.[11]

Factors to consider include:[12]

  • The seriousness of the offence;
  • Than likely occupancy of the residence;
  • The degree of destruction to privacy by the search;
  • The nature of the item to be searched for, Including the likelihood of it being disposed of;
  • The need of investigation.

Overly general grounds such as a belief that the items can "easily be moved or destroyed" and maybe "sold or rented" are insufficient to support an application under section 488. [13]

  1. R v Shivrattan, 2017 ONCA 23 (CanLII), 346 CCC (3d) 299, per Doherty JA, at para 60
    R v Dueck, 2005 BCCA 448 (CanLII), 200 CCC (3d) 378, per Ryan JA, at paras 17 to 21
    R v Saunders, 2003 NLCA 63 (CanLII), 181 CCC (3d) 268, per Wells CJ and Rowe J
  2. R v Gould's Fisheries Ltd, 2002 CanLII 28898 (NL PC), per Gorman J
  3. R v Sutherland, 2000 CanLII 17034 (ON CA), 150 CCC (3d) 231, per Carthy JA, at para 15 (“A search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected”)
  4. Sutherland, ibid., at para 25
  5. R v Trieu, 2010 BCCA 540 (CanLII), 272 CCC (3d) 237, per Prowse JA ("Absent situations calling for immediate attention, such as the examples to which I have referred, mere convenience cannot justify attendance on private property late at night")
  6. R v Posternak (1929), 24 Alta LR 202, 51 CCC 426(*no CanLII links)
  7. R v Anderson, 2001 BCSC 674 (CanLII), per Morrison J, at para 17
    R v Sutherland, 2000 CanLII 17034 (ON CA), 150 CCC (3d) 231, per Carthy JA, at paras 33 to 34
    R v Kirkham, 2004 BCSC 1150 (CanLII), BCJ No 1808, per Chamberlist J, at para 54
  8. R v MacDonald, 2012 ONCA 244 (CanLII), 290 OAC 21, per Laskin JA, at para 30
  9. Sutherland, supra, at paras 12, , at paras 25, , at paras 29, 30
  10. R v LVR, 2014 BCCA 349 (CanLII), 316 CCC (3d) 120, per Saunders JA
  11. LVR, ibid.
  12. LVR, ibid., at paras 24, 25
  13. R v Phillips, 2011 ONSC 1881 (CanLII), OJ No 1302, per Gordon J ("The simple statement that some of the items to be searched for maybe easily moved or destroyed, without more, does not suffice.")

Seizure of Evidence

See also: Seizure of Property

Whenever evidence, other than records or documents, are seized pursuant to a search warrant or incidental to a search, the officer must file an initial Report To Justice under s.489.1 regardless of whether charges are contemplated.

Where the property is to be held for a period of greater than 30 days without charges being laid, the officer must also request a Detention Order from the justice or judge.

Search of Location Outside of Canada

The Charter does not apply to search and seizure occurring outside of Canada.[1]

A search and seizure outside of Canada must comply with local law.[2] The conduct by Canadian authorities that triggers a search and seizure in a foreign country does not need to be authorized by a Canadian judicial authorization.[3]

  1. R v Hape, 2007 SCC 26 (CanLII), [2007] 2 SCR 292, per Lebel J, at para 88
  2. Hape, ibid., at para 88
  3. Canada (Attorney General) v Schreiber, 1998 CanLII 828 (SCC), [1998] 1 SCR 841, per Lamer CJ, at para 28

Execution of Wiretap Warrant

Execution in Canada

188.1 An authorization given under section 184.2 [one-party consent wiretap], 184.3 [one-party consent wiretap by telewarrant], 186 [authorization of wiretap] or 188 [emergency wiretaps] may be executed at any place in Canada. Any peace officer who executes the authorization must have authority to act as a peace officer in the place where it is executed.
1993, c. 40, s. 9; 2019, c. 25, s. 66.
[annotation(s) added]

CCC


Note up: 188.1

No civil or criminal liability

188.2 No person who acts in accordance with an authorization or under section 184.1 [interception to prevent bodily harm] or 184.4 [immediate interception — imminent harm] or who aids, in good faith, a person who he or she believes on reasonable grounds is acting in accordance with an authorization or under one of those sections incurs any criminal or civil liability for anything reasonably done further to the authorization or to that section.
1993, c. 40, s. 9.
[annotation(s) added]

CCC


Note up: 188.2

See Also