View source for Warrantless Overseizure Under Section 489

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==Seizure of Things Not Specified==
Section 489 authorizes police officers to seize certain property. It specifically addresses the situation where police seek to seize property other than what is specified in the warrant.

{{quotation|
'''Seizure of things not specified'''<br>
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.<br>

'''Seizure without warrant'''<br>
(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.<br>

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.
|[http://www.canlii.ca/t/7vf2#sec489 CCC]
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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:<ref>
R v Fawthrop, [http://canlii.ca/t/1czsq 2002 CanLII 45004] (ON CA) at para 23
</ref>
# obtained by crime;
# used in a crime; or
# 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".<ref> 
R v Bishop, [http://canlii.ca/t/fwsg2 2013 BCSC 522] (CanLII) at para 179<br> 
R v Sipes, [http://canlii.ca/t/fxhk4 2011 BCSC 1763] (CanLII) at para 203<br>
</ref> The legal test for reasonable grounds to believe should be the same as that for [[Warrantless Arrests]]. It must involved "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".<ref>
see Mugesera v Canada (Minister of Citizenship and Immigration), [http://canlii.ca/t/1l249 2005 SCC 40] (CanLII), [2005] 2 SCR 100 at para 117
</ref>

This section does not codify or incorporate any part of the common law doctrine of "plain view".<ref>
R v Bottineau, [http://canlii.ca/t/fkgld 2011 ONCA 194] (CanLII)<br>
R v Le (T.D.), [http://canlii.ca/t/frj5d 2011 MBCA 83] (CanLII) - they are not "coextensive"<br>
R v R.M.J.T., [http://canlii.ca/t/g6px4 2014 MBCA 36] (CanLII) <br>
c.f. R v Boudreau-Fontaine, [http://canlii.ca/t/fl3zf 2010 QCCA 1108] (CanLII),  at para 50<br> 
L’Espérance v R., [http://canlii.ca/t/fnlb6 2011 QCCA 237] (CanLII) at para 36<br>
</ref> Not all the elements of the plainview doctrine need to be met to allow for seizure under s. 489(2).<ref>
R v Frieburg (T.), [http://canlii.ca/t/fxshh 2013 MBCA 40] (CanLII) at para 67<br>
</ref>

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.<ref>
R v Bottineau, at para 74<br>
</ref>

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.<ref>
R v Little, [http://canlii.ca/t/2509x 2009 CanLII 41212] (ON SC) at para 144
</ref>

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.<Ref>
see Little<br>
</ref>

The purpose of s. 489(2) is the preservation of evidence.<ref>
R v R.M.J.T., [http://canlii.ca/t/g6px4 2014 MBCA 36] (CanLII) at para 32<br>
</ref>

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."<ref>
R v Makhmudov, [http://canlii.ca/t/1s7d0 2007 ABCA 248] (CanLII), at para 19 <br>
see also Sipes at para 204
</ref>

Section 489 allows for the collection of evidence for a separate crime while executing a search based on an initial believed crime.<ref>
R v Middleton, [http://canlii.ca/t/1fndh 2000 BCCA 660] (CanLII) - standard search warrant executed for theft of electricity. when grow op found, no need to get a second CDSA search warrant
</ref> It does not require that the evidence discovered be related to the initial investigation.<ref>
R.M.J.T.
</ref>

===After Initial Seizure===
{{seealso|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:<ref> see R v Sipes, [http://canlii.ca/t/fxhk4 2011 BCSC 1763] (CanLII) at para 192 onward<br>
</ref>
{{quotation|
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.
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}}
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==See Also==
* [[Procedure on Seizure of Property]]
* [[Detention of Things Seized Under Section 490]]
* [[Plain View Search and Seizure]]
* Seizure Under [[Warrantless Search in Exigent Circumstances|Exigent Circumstances]] (487.11)