Special Search Issues

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 93006)

Computer Investigations

Searches That May Intrude on Solicitor-Client Privilege

Journalist Records and Sources

Other Privileged Records

See also: Privilege

Confidential records kept by a First Nations Band persuant to a Band Counsel Resolution can be subject to a search warrant.[1]

When a peace officer is "applying for" and "executing search warrants should be alive to ensuring that solicitor-client privilege is protected to the greatest extent possible, whenever the circumstances so warrant."[2]

  1. R v Tomah, 1996 CanLII 4847 (NB CA), 465 APR 232, per curiam, at p. 5
  2. R v Ciarniello, 2004 CanLII 23110 (ON SC), 63 WCB (2d) 14, per Dawson J, at para 77

Assistance Orders

Taking Pictures at the Scene

An officer may take photos at the scene of their investigation of what they believed to be a crime. Generally, they are entitled to record a scene that they are lawfully allowed to make observations of. [1] It also follows that no violation of s. 10(b) could be found where an officer takes a picture of an accused while at the scene.[2]

  1. R v Nguyen, 2013 BCSC 950 (CanLII), per Williams J, at paras 109 to 114
    R v Ly, 2012 BCSC 504 (CanLII), per Barrow J, at para 42
  2. Ly, ibid.
    Nguyen, supra

Motor Vehicle Searches

See also: Ancillary Powers Doctrine
Random Roadside Searches

Random roadside detentions and searches violate s. 8 right against unreasonable search and seizure. [1]

  1. R v Hufsky, 1988 CanLII 72 (SCC), [1988] 1 SCR 621, per Le Dain J
    R v Dedman, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, per Le Dain J - not authorized at common law

Sharing Evidence with Foreign Law Enforcement

Cross-border sharing of evidence can be permitted. It will generally depend on whether the sharing was "resonable." This can be assessed in light of whether the evidence was lawfully obtained, were there “protocols”, “caveats” or agreements with the foreign jurisdiction, or whether the evidence may be used for improper purposes such as political prosecutions.[1]

Disclosing Evidence Seized Under a Warrant

Generally, law enforcement will be able to disclose information and evidence to other law enforcement agencies without the need of a judicial authorization.[2]

  1. Wakeling v United States of America, 2014 SCC 72 (CanLII), [2014] 3 SCR 549, per Moldaver J
  2. Wakeling, ibid.

Executing Search Warrants in Another Province

See also: Special Jurisdiction for Offences Over Water

Execution in another province

487.03 (1) If a warrant is issued under section 487.01 [general warrants], 487.05 [warrant to Obtain DNA samples] or 492.1 [tracking warrants] or subsection 492.2(1) [warrant for transmission data recorder] in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.


(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.
(2) [Repealed, 2007, c. 22, s. 7]

1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.
[repealed 2019, c. 25. On December 18, 2019]
[annotation(s) added]


Note up: 487.03(1) and (1.1)

The execution of a wiretap warrant in a different province is governed by s. 188.1(2):

Execution in Canada

188.‍1 An authorization given under section 184.‍2 [one-party consent wiretap], 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; 2022, c. 17, s. 9.
[annotation(s) added]


Note up: 188.1

Defined terms: "Canada" (s. 35 IA) and "peace officer" (s. 2)

Section 487 Warrants

See also: Section 487 Search Warrants

[omitted (1)]

Execution in Canada

(2) A warrant issued under subsection (1) [territorial search warrants – requirements] may be executed at any place in Canada. A public officer named in the warrant, or any peace officer, who executes the warrant must have authority to act in that capacity in the place where the warrant is executed.
[omitted (2.1), (2.2), (3) and (4)]
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; 2019, c. 25, s. 191; 2022, c. 17, s. 16.
[annotation(s) added]


Note up: 487(2)

Defined terms: "Canada" (s. 35 IA), "peace officer" (s. 2), and "public officer"

"Territorial division" is defined in s. 2 of the Code.[1]

The act of endorsing or "backing” a warrant "is a purely ministerial act."[2]

  1. See Definitions of Parties, Persons, Places and Organizations
  2. R v Vaillancourt, 2019 ABCA 317 (CanLII), 93 Alta LR (6th) 98, per curiam, at para 34
    R v Haley, 1986 CanLII 4641 (ON CA), 27 CCC (3d) 454, per MacKinnon CJ at 464

International Point of Entry Searches/Border Searches

See also: Searches at an International Border

Exercise of Police Powers Outside of Canada

See also: Special Jurisdiction for Offences Over Water
Exercising powers of arrest, entry, etc.

477.3 (1) Every power of arrest, entry, search or seizure or other power that could be exercised in Canada in respect of an act or omission referred to in section 477.1 [offences at sea outside of Canada] may be exercised, in the circumstances referred to in that section,

(a) at the place or on board the ship or marine installation or structure, within the meaning of section 2 of the Oceans Act, where the act or omission occurred; or
(b) where hot pursuit has been commenced, at any place on the seas, other than a place that is part of the territorial sea of any other state.
Arrest, search, seizure, etc.

(2) A justice or judge in any territorial division in Canada has jurisdiction to authorize an arrest, entry, search or seizure or an investigation or other ancillary matter related to an offence

(a) committed in or on the territorial sea of Canada or any area of the sea that forms part of the internal waters of Canada, or
(b) referred to in section 477.1 [offences at sea outside of Canada]

in the same manner as if the offence had been committed in that territorial division.


(3) Where an act or omission that is an offence by virtue only of section 477.1 [offences at sea outside of Canada] is alleged to have been committed on board any ship registered outside Canada, the powers referred to in subsection (1) [offences at sea outside of Canada – police power of arrest, entry, search and seizure] shall not be exercised outside Canada with respect to that act or omission without the consent of the Attorney General of Canada.
1990, c. 44, s. 15; 1996, c. 31, s. 70.
[annotation(s) added]

477.4 (1) and (2) [Repealed, 1996, c. 31, s. 71]


Note up: 477.3(1), (2) and (3)

Defined terms: "Attorney General" (s. 2), "Canada" (s. 35 IA), "justice" (s. 2), and "territorial sea" (s. 35 IA)