Execution of Search Warrants: Difference between revisions

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[[Fr:Ex%C3%A9cution_des_mandats_de_perquisition]]
{{Currency2|January|2023}}
{{HeaderWarrants}}
{{HeaderWarrants}}
==Scope of Search Warrant Powers==
==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".<ref>
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."<ref>
{{CanLIIR|Vu|g1r8p|2013 SCC 60 (CanLII)}}{{perSCC|Cromwell J}}{{atL|g1r8p|23}}
{{CanLIIRP|Vu|g1r8p|2013 SCC 60 (CanLII)|[2013] 3 SCR 657}}{{perSCC|Cromwell J}}{{atL|g1r8p|23}}
</ref>
</ref>


Line 8: Line 10:
{{ibid1|Vu}}{{atL|g1r8p|39}}<br>
{{ibid1|Vu}}{{atL|g1r8p|39}}<br>
J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (8th ed. 2010){{atp|1181}}<br>  
J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (8th ed. 2010){{atp|1181}}<br>  
e.g. {{CanLIIR|E. Star International Inc|26tsf|2009 ONCJ 576 (CanLII)}}{{perONCJ|Chisvin J}}{{atL|26tsf|17}}<br>
e.g. {{CanLIIRx|E. Star International Inc|26tsf|2009 ONCJ 576 (CanLII)}}{{perONCJ|Chisvin J}}{{atL|26tsf|17}}<br>
{{CanLIIRC|BGI Atlantic Inc v Canada (Minister of Fisheries and Oceans)|ft41v|2004 NLSCTD 165 (CanLII)}}{{perNLSC|Leblanc J}}{{atsL|ft41v|70| to 72}}<br>  
{{CanLIIRPC|BGI Atlantic Inc v Canada (Minister of Fisheries and Oceans)|ft41v|2004 NLSCTD 165 (CanLII)|717 APR 206}}{{perNLSC|Leblanc J}}{{atsL|ft41v|70| to 72}}<br>  
{{CanLIIR|Charles|fqzh6|2012 ONSC 2001 (CanLII)}}{{perONSC|Molloy J}}{{atL|fqzh6|61}}<br>
{{CanLIIRP|Charles|fqzh6|2012 ONSC 2001 (CanLII)|258 CRR (2d) 33}}{{perONSC|Molloy J}}{{atL|fqzh6|61}}<br>
</ref>
</ref>


Line 16: Line 18:
{{supra1|Vu}}{{atL|g1r8p|24}}</ref>
{{supra1|Vu}}{{atL|g1r8p|24}}</ref>
The "receptacle rule" does not apply.<ref>
The "receptacle rule" does not apply.<ref>
{{supra1|Vu}}{{atsL|g1r8p|24|}}, {{atsL-np|g1r8p|39}}</ref>
{{supra1|Vu}}{{atsL|g1r8p|24|}}, {{atsL-np|g1r8p|39|}}</ref>


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.<ref>
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.<ref>
Line 27: Line 29:


A search does not become unreasonable simply because, during the execution of the warrant, the police are anticipating to find evidence of other offences.<ref>
A search does not become unreasonable simply because, during the execution of the warrant, the police are anticipating to find evidence of other offences.<ref>
{{CanLIIRP|Daigle|1dcws|1994 CanLII 214 (BCCA)|[1994] BCJ No 2118}}{{perBCCA|Rowles JA}}{{atL|1dcws|21}}<br>
{{CanLIIRP|Daigle|1dcws|1994 CanLII 214 (BC CA)|[1994] BCJ No 2118}}{{perBCCA|Rowles JA}}{{atL|1dcws|21}}<br>
{{CanLIIR-N|Yue|, [1998] BCJ No 1619}}{{at-|5}}<br>
{{CanLIIR-N|Yue|, [1998] BCJ No 1619}}{{at-|5}}<br>
</ref>
</ref>


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".<ref>
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."<ref>
{{CanLIIRP|Cornell|239zd|2009 ABCA 147 (CanLII)|243 CCC (3d) 510}}{{perABCA|Slatter JA}}</ref>
{{CanLIIRP|Cornell|239zd|2009 ABCA 147 (CanLII)|243 CCC (3d) 510}}{{perABCA|Slatter JA}}</ref>


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".<ref>
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."<ref>
{{ibid1|Cornell}}</ref>
{{ibid1|Cornell}}</ref>


Section 29 of the code does not require that any particular  member of an entry team of police officers have a copy of the warrant "with him" as long as at least one member of the search team participating has a copy of the warrant and can produce upon request.<ref> {{ibid1|Cornell}}</ref>
; Wearing Masks During Search
 
The wearing of masks by police officers will not render a reasonable search unreasonable and vice versa. <ref>
The wearing of masks by police officers will not render a reasonable search unreasonable and vice versa. <ref>
{{ibid1|Cornell}} in obiter</ref>
{{ibid1|Cornell}} in obiter</ref>
; 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.<Ref>
{{CanLIIRP|Finlay and Grellette|1npmr|1985 CanLII 117 (ON CA)|23 CCC (3d) 48}}{{perONCA-H|Martin JA}} at p. 63
{{CanLIIR|Rafferty|fr9w5|2012 ONSC 703 (CanLII)}}{{Atl|fr9w5|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")<br>
R. v. Woodall, [1991] O.J. No. 3565 (Gen. Div.), aff’d [1993] O. J. No. 4001 (C.A.).
</ref>


; "Fellow Officer test"
; "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".<Ref>
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."<Ref>
{{CanLIIR|Townsend|h4jdn|2017 ONSC 3435 (CanLII)}}{{perONSC|Varpio J}}{{atL|h4jdn|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...")<br>
{{CanLIIRP|Townsend|h4jdn|2017 ONSC 3435 (CanLII)|140 WCB (2d) 240}}{{perONSC|Varpio J}}{{atL|h4jdn|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...")<br>
{{CanLIIR|Rafferty|fr9w5|2012 ONSC 703 (CanLII)}}{{perONSC|Heeney J}}{{atL|fr9w5|103}}<br>
{{CanLIIRP|Rafferty|fr9w5|2012 ONSC 703 (CanLII)|OJ No 2132}}{{perONSC|Heeney J}}{{atL|fr9w5|103}}<br>
</ref>
</ref>


; Duration of Search
; 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".<ref>
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."<ref>
{{supra1|Rafferty}}{{atL|fr9w5|28}}<br>
{{supra1|Rafferty}}{{atL|fr9w5|28}}<br>
"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: {{CanLIIRP|XNli|SPC|Woodall|}}..."
"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: {{CanLIIRP|XNli|SPC|Woodall|}}..."
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The police may stay in the residence beyond the authorized time limit to finish their search.<ref>
The police may stay in the residence beyond the authorized time limit to finish their search.<ref>
{{ibid1|Woodall}}{{ats-|57 to 61}} aff'd ONCA{{at-|2}}<br>
{{ibid1|Woodall}}{{ats-|57 to 61}} aff'd ONCA{{at-|2}}<br>
{{CanLIIR|Brown|29fk7|2010 ONSC 2280 (CanLII)}}{{perONSC|James J}}{{atsL|29fk7|17| to 23}}<br>
{{CanLIIRP|Brown|29fk7|2010 ONSC 2280 (CanLII)|OJ No 1678}}{{perONSC|James J}}{{atsL|29fk7|17| to 23}}<br>
{{supra1|Rafferty}}{{atsL|fr9w5|26| to 28}}<br>
{{supra1|Rafferty}}{{atsL|fr9w5|26| to 28}}<br>
{{CanLIIR|Gerlitz|g1l9c|2013 ABQB 624 (CanLII)}}{{perABQB|Gates J}}{{atsL|g1l9c|61| to 71}}<br>
{{CanLIIRx|Gerlitz|g1l9c|2013 ABQB 624 (CanLII)}}{{perABQB|Gates J}}{{atsL|g1l9c|61| to 71}}<br>
</ref>
</ref>


However, once the search is finished the police must leave immediately.<ref>
However, once the search is finished the police must leave immediately.<ref>
{{CanLIIR|Shin|ggrtc|2015 ONCA 189 (CanLII)}}{{perONCA|Gillese JA}}{{atsL|ggrtc|24|}}, {{atsL-np|ggrtc|34|}}, and {{atsL-np|ggrtc|57|}}<br>
{{CanLIIRP|Shin|ggrtc|2015 ONCA 189 (CanLII)|322 CCC (3d) 554}}{{perONCA|Gillese JA}}{{atsL|ggrtc|24|}}, {{atsL-np|ggrtc|34|}}, and {{atsL-np|ggrtc|57|}}<br>
</ref>  
</ref>  
Once departed, the police may not re-enter without a new authorization.<ref>
Once departed, the police may not re-enter without a new authorization.<ref>
{{CanLIIR|Finlay and Grellette|1npmr|1985 CanLII 117 (ONCA)}}{{perONCA-H|Martin JA}}{{atp|63}}<br>
{{supra1|Finlay and Grellette}}{{atp|63}}<br>
</ref>
</ref>


; Officer Safety
; 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.<ref>
While executing a search warrant the police may perform searches that are not authorized within the warrant for the purposes of officer safety.<ref>
{{CanLIIR|Chuhaniuk|2cl6p|2010 BCCA 403 (CanLII)}}{{AtL|2cl6p|55}}<br>
{{CanLIIRP|Chuhaniuk|2cl6p|2010 BCCA 403 (CanLII)|261 CCC (3d) 486}}{{AtL|2cl6p|55}}<br>
</ref>
</ref>


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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.
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.
{{reflist|2}}
{{reflist|2}}
=== 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.
<!--- OLD LAW that no longer applies after passing of Bill S-4 in January 2023
Section 29 of the code does not require that any particular  member of an entry team of police officers have a copy of the warrant "with him" as long as at least one member of the search team participating has a copy of the warrant and can produce upon request.<ref> {{ibid1|Cornell}}</ref>


==Lawful Entry into a Dwelling House==
While it is good practice for the police to have a copy of the warrant while they search, it may be sufficient for s. 29(1) that the officer had the warrant available to them and not physically on their person at the time of search.<REf>
When executing an arrest warrant for someone in a residence, the police may enter under the "knock and announce" doctrine without a residential search warrant.<ref>
{{CanLIIRP|Boekdrukker|hq56j|2018 ONSC 266 (CanLII)}}{{perONSC|Nakatsuru J}}{{atsL|hq56j|10| to 12}}
{{CanLIIRP|Cornell|2bttk|2010 SCC 31 (CanLII)|[2010] 2 SCR 142}}{{perSCC|Cromwell J}}{{at|2bttk|19}} (knock and announce rule)<br>
See [[Execution of Search Warrants#Lawful Entry into a Dwelling House]]<br>
Also [[Warrant Arrests#Feeney Warrant of Arrest]]<br>
</ref>
</ref>
 
For example, it is permissible for the officer to leave the warrant in their vehicle where there was no one in the residence at the time of search.<ref>
Where the police are present at a dwelling-house that is accessible to them, they may enter in certain circumstances. Unless there are exigent circumstances, the officer must make an announcement before forcing entry into a dwelling house. This is known as the knock-and-announce rule. This involves the following:<ref>
{{ibid1|Boekdrukker}} at para 11
{{supra1|Cornell}}{{atL|2bttk|20}}</ref>
# notice of presence by knocking or ringing the door bell,
# notice of authority, by identifying themselves as law enforcement officers and
# notice of purpose, by stating a lawful reason for entry.
 
Once the announcement has been made the police must give the potential occupants a reasonable amount of time to answer the door.<ref>
{{CanLIIR|Pan|fsl55|2012 ONCA 581 (CanLII)}}{{perONCA|Laskin JA}}{{atL|fsl55|40}}<br>
also {{CanLIIRP|Cao|1vm64|2008 BCSC 139 (CanLII)|167 C.R.R. (2d) 120}}{{perBCSC|Bruce J}}<br>
</ref>
</ref>
 
It is likely problematic if the warrant has been left at the police station.<ref>
The purpose of this rule is to protect "the dignity and privacy interests of the occupants of the house, and the enhancement of the safety of the police and the public".<ref>  
{{supra1|Boekdrukker}} at para 12<br>
{{supra1|Pan}} citing Cornell{{atL|2bttk|19}}<br>
{{CanLIIRP|JEB|1zg4q|1989 CanLII 1495 (NS CA)|52 CCC (3d) 224}}{{perNSCA-H|Macdonald JA}}
</ref>
</ref>
-->


Where announcement has been made and the police receive no answer, they are entitled to enter the home by force (the knock-and-break-in-the-door-if-no-answer rule).
{{quotation3|
<ref>
;Duty of person executing certain warrants
{{supra1|Pan}}{{atL|fsl55|38}}</ref>
487.093 (1) A person who executes a warrant issued under subsection 117.04(1), 199(1), 395(1) or 487(1) shall, during that execution,
:(a) give the following to any person who is present and ostensibly in control of the building, receptacle or place to be searched:
::(i) a copy of the warrant, and
::(ii) a notice in Form 5.1 setting out the address of the court before which anything seized during the execution may be brought or from which a copy of a report on anything so seized may be obtained;
:(b) affix the copy and the notice in a prominent location within the building or place or on or next to the receptacle, if there is no person present and ostensibly in control of the building, receptacle or place; or
:(c) give the copy and the notice to the person to be searched, if the warrant is issued under subsection 395(1) for the search of a person.


An officer executing a search warrant must have the warrant available for production to allow the occupant to know (1) the reason for the search, informing them of their legal position and (2) that there is a "colour of authority for the police to enter.<ref>
; Exception
See Search and Seizure Law in Canada{{atps|17-5}}</ref>
(2) Subsection (1) does not apply if the warrant authorizes the search of anything that is detained under this Act after it has been lawfully seized.


; Hard/Dynamic Entry
{{LegHistory20s|2022, c. 17}}, s. 22.
A hard entry (or dynamic entry) is an entry into a house without following the "knock-and-announce" common law rule.
|
|}}


The burden is upon the police to prove on a balance of probabilities that the departure from the knock-and-announce rule was justified.<ref>
{{reflist|2}}
{{CanLIIR|Burke|fzcl2|2013 ONCA 424 (CanLII)}}{{perONCA|Weiler JA}}{{atL|fzcl2|41}}</ref>


Police may enter a residence with a search warrant and not follow the common law rule where they have grounds believe that announcing may result in evidence being destroyed or resistance may be made where officers will be put at risk.
==Lawful Entry into a Dwelling House==
<ref>
* [[Manner of Authorized Entry into a Dwelling House]]
{{CanLIIR|Thompson|29sdv|2010 ONSC 2862 (CanLII)}}{{perONSC|Code J}} - deployed a flash-bang device and left house in disarray.
{{CanLIIR|Jordan|fkfrm|2011 ABQB 105 (CanLII)}}{{perABQB| Mahoney J}}
</ref>
This has been approved in circumstances involving investigation for child pornography.<ref>
{{supra1|Burke}}</ref>
 
The use of "hard entries" do not require judicial approval, but including it in the ITO would go contribute to the validity of the warrant.<ref>
{{supra1|Thompson}}</ref>
 
{{reflist|2}}


==Residual Search Powers During Execution==
==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".<ref>
An officer may search an outbuilding on the property of the residence to be searched where it is part of a "security check."<ref>
{{CanLIIR|Chuhaniuk|2cl6p|2010 BCCA 403 (CanLII)}}{{perBCCA|Frankel JA}}
{{CanLIIRP|Chuhaniuk|2cl6p|2010 BCCA 403 (CanLII)|261 CCC (3d) 486}}{{perBCCA|Frankel JA}}
</ref>
</ref>


An officer may not search any person found with a residence to be searched unless there are specific grounds to do so.<ref>
An officer may not search any person found with a residence to be searched unless there are specific grounds to do so.<ref>
{{CanLIIR-N|Thompson|, [1996] OJ No 1501 (Ont.Ct.J.-Prov.Div.)}}<br>
{{CanLIIR-N|Thompson|, [1996] OJ No 1501 (Ont.Ct.J.-Prov.Div.)}}<br>
{{CanLIIRP|Mutch|g8c7f|1986 CanLII 2963 (SKQB)| C.R.R. 310, 47 Sask R 122 (Q.B.)}}{{perSKQB|Noble J}}
{{CanLIIRP|Mutch|g8c7f|1986 CanLII 2963 (SK QB)| CRR 310, 47 Sask R 122 (Q.B.)}}{{perSKQB|Noble J}}
</ref>
</ref>


Nor can police arrest a person for simply being present inside a suspected drug house.<ref>
Nor can police arrest a person for simply being present inside a suspected drug house.<ref>
{{CanLIIR|Nguyen|1d10r|1999 CanLII 5099 (BC SC)}}{{perBCSC|Levine J}}</ref>  
{{CanLIIRx|Nguyen|1d10r|1999 CanLII 5099 (BC SC)}}{{perBCSC|Levine J}}</ref>  
However, s. 11(5) of the CDSA permits searching where there is belief that person is holding drug related property.
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
; 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. <ref>
A vehicle parked across the street from a residence being searched pursuant to a warrant cannot be searched under that same warrant. <ref>
{{CanLIIR|Frieburg|fkp3z|2011 MBQB 58 (CanLII)}}{{perMBQB|Menzies J}}, evidence excluded under section 24 (2) for the search of a vehicle </ref>
{{CanLIIRP|Frieburg|fkp3z|2011 MBQB 58 (CanLII)|263 Man R (2d) 174}}{{perMBQB|Menzies J}}, evidence excluded under section 24 (2) for the search of a vehicle </ref>


{{Reflist|2}}
{{Reflist|2}}
Line 149: Line 147:
==Night Searches==
==Night Searches==
Under s. 488 limits the use of night searches under the Criminal Code:
Under s. 488 limits the use of night searches under the Criminal Code:
{{quotation2|
{{quotation3|
; Execution of search warrant
; Execution of search warrant
488. A warrant issued under section 487 {{AnnSec4|487}} or 487.1 {{AnnSec4|487.1}} shall be executed by day, unless
488 A warrant issued under section 487 {{AnnSec4|487}} or 487.1 {{AnnSec4|487.1}} shall be executed by day, unless
:(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;
:(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
:(b) the reasonable grounds are included in the information; and
Line 157: Line 155:


R.S., {{LegHistory80s|1985, c. C-46}}, s. 488; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 70; {{LegHistory90s|1997, c. 18}}, s. 47.{{Annotation}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 488; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 70; {{LegHistory90s|1997, c. 18}}, s. 47.{{Annotation}}
|[{{CCCSec|488}} CCC]
|{{CCCSec2|488}}
|{{NoteUp|488}}
|{{NoteUp|488}}
|{{terms-
|[[Time and Place#Computation of Time|"day" (s. 2)]]
|"justice" (s. 2)
|[[Time and Place#Computation of Time|"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.<ref>
The restrictions on night searches under s. 488 do not apply to searches authorized under s. 11 of the CDSA.<ref>
{{CanLIIR|Shivrattan|gwwtw|2017 ONCA 23 (CanLII)}}{{perONCA|Doherty JA}}{{atL|gwwtw|60}}<br>
{{CanLIIRP|Shivrattan|gwwtw|2017 ONCA 23 (CanLII)|346 CCC (3d) 299}}{{perONCA-H|Doherty JA}}{{atL|gwwtw|60}}<br>
{{CanLIIR|Dueck|1lpgq|2005 BCCA 448 (CanLII)}}{{perBCCA|Ryan JA}}{{atsL|1lpgq|17| to 21}}<br>
{{CanLIIRP|Dueck|1lpgq|2005 BCCA 448 (CanLII)|200 CCC (3d) 378}}{{perBCCA|Ryan JA}}{{atsL|1lpgq|17| to 21}}<br>
{{CanLIIRP|Saunders|1g24q|2003 NLCA 63 (CanLII)|181 CCC (3d) 268}}{{perNLCA|Wells CJ and Rowe J}}
</ref>
 
; Application to Provincial Warrants
Any authorization to search a premises under provincial legislation should comply with s. 488(b).<ref>
{{CanLIIRx|Gould's Fisheries Ltd|1chtb|2002 CanLII 28898 (NL PC)}}{{perNLPC|Gorman J}}
</ref>
</ref>


; Enhanced Privacy
A search of a house should be approached with the highest degree of privacy.<ref>
A search of a house should be approached with the highest degree of privacy.<ref>
{{CanLIIR|Sutherland|1fbjz|2000 CanLII 17034 (ONCA)}}{{perONCA|Carthy JA}}{{atL|1fbjz|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”)</ref>
{{CanLIIRP|Sutherland|1fbjz|2000 CanLII 17034 (ON CA)|150 CCC (3d) 231}}{{perONCA|Carthy JA}}{{atL|1fbjz|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”)</ref>
 
An applicant must include a request to perform a night search within the ITO.


A night search will only be granted in "exceptional circumstances".<ref>
; "Exceptional circumstances"
A night search will only be granted in "exceptional circumstances."<ref>
{{ibid1|Sutherland}}{{atL|1fbjz|25}}<br>
{{ibid1|Sutherland}}{{atL|1fbjz|25}}<br>
</ref>  
</ref>  
Mere convenience is not enough.<ref>
Mere convenience is not enough.<ref>
{{CanLIIR|Trieu|2dns1|2010 BCCA 540 (CanLII)}}{{perBCCA|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")
{{CanLIIRP|Trieu|2dns1|2010 BCCA 540 (CanLII)|272 CCC (3d) 237}}{{perBCCA|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")
</ref>
</ref>
The reason for a night search must be found in the text of the ITO to be valid.<ref>
The reason for a night search must be found in the text of the ITO to be valid.<ref>
{{CanLIIR-N|Posternak| (1929), 24 Alta. L.R. 202, 51 CCC 426}}<br>
{{CanLIIR-N|Posternak| (1929), 24 Alta LR 202, 51 CCC 426}}<br>
</ref>
</ref>


; 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.<ref>
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.<ref>
{{CanLIIR|Anderson|1wn3t|2001 BCSC 674 (CanLII)}}{{perBCSC|Morrison J}}{{atL|1wn3t|17}}<br>
{{CanLIIRx|Anderson|1wn3t|2001 BCSC 674 (CanLII)}}{{perBCSC|Morrison J}}{{atL|1wn3t|17}}<br>
{{CanLIIR|Sutherland|1fbjz|2000 CanLII 17034 (ONCA)}}{{perONCA|Carthy JA}}{{atsL|1fbjz|33| to 34}}<br>
{{CanLIIRP|Sutherland|1fbjz|2000 CanLII 17034 (ON CA)|150 CCC (3d) 231}}{{perONCA|Carthy JA}}{{atsL|1fbjz|33| to 34}}<br>
{{CanLIIR|Kirkham|1hqmn|2004 BCSC 1150 (CanLII)}}{{perBCSC|Chamberlist J}}{{atL|1hqmn|54}}<br>
{{CanLIIRP|Kirkham|1hqmn|2004 BCSC 1150 (CanLII)|BCJ No 1808}}{{perBCSC|Chamberlist J}}{{atL|1hqmn|54}}<br>
</ref>
</ref>


; Evidence
A lack of evidence that the entry frightened anyone goes to a finding that the night search was not unreasonable.<ref>
A lack of evidence that the entry frightened anyone goes to a finding that the night search was not unreasonable.<ref>
{{CanLIIRP|MacDonald|fqztb|2012 ONCA 244 (CanLII)|290 OAC 21}}{{perONCA|Laskin JA}}{{atL|fqztb|30}}<br>
{{CanLIIRP|MacDonald|fqztb|2012 ONCA 244 (CanLII)|290 OAC 21}}{{perONCA|Laskin JA}}{{atL|fqztb|30}}<br>
</ref>
</ref>


; 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.<ref>
If there are any errors in the warrant, the fact that it was a search that took place at night will exaggerate the defects.<ref>
{{supra1|Sutherland}}{{atsL|1fbjz|12|}}, {{atsL|1fbjz|25|}}, {{atsL|1fbjz|29|, 30}}</ref>
{{supra1|Sutherland}}{{atsL|1fbjz|12|}}, {{atsL|1fbjz|25|}}, {{atsL|1fbjz|29|, 30}}</ref>


; Reasonable grounds standard
Police do not need to establish the necessity for night search, rather just needs to be reasonable grounds.<ref>
Police do not need to establish the necessity for night search, rather just needs to be reasonable grounds.<ref>
{{CanLIIR|LVR|g8zll|2014 BCCA 349 (CanLII)}}{{perBCCA|Saunders JA}}
{{CanLIIRP|LVR|g8zll|2014 BCCA 349 (CanLII)|316 CCC (3d) 120}}{{perBCCA|Saunders JA}}
</ref>
</ref>


; Considerations
The judge may only consider the circumstances known at the time that the warrant was issued.<ref>
The judge may only consider the circumstances known at the time that the warrant was issued.<ref>
{{ibid1|LVR}}
{{ibid1|LVR}}
Line 212: Line 229:


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. <ref>
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. <ref>
{{CanLIIR|Phillips|fkqdr|2011 ONSC 1881 (CanLII)}}{{perONSC|Gordon J}} ("The simple statement that some of the items to be searched for maybe easily moved or destroyed, without more, does not suffice.")</ref>
{{CanLIIRP|Phillips|fkqdr|2011 ONSC 1881 (CanLII)|OJ No 1302}}{{perONSC|Gordon J}} ("The simple statement that some of the items to be searched for maybe easily moved or destroyed, without more, does not suffice.")</ref>
 
; Not Required for s. 11 CDSA Warrants
There is no requirements similar to s. 488 for a night search under s. 11 of the CDSA.<ref>
see [[CDSA Warrants]]
</ref>


{{reflist|2}}
{{reflist|2}}
Line 232: Line 244:


The Charter does not apply to search and seizure occurring outside of Canada.<ref>
The Charter does not apply to search and seizure occurring outside of Canada.<ref>
{{CanLIIR|Hape|1rq5n|2007 SCC 26 (CanLII)}}{{perSCC|Lebel J}}{{atL|1rq5n|88}}<br>
{{CanLIIRP|Hape|1rq5n|2007 SCC 26 (CanLII)|[2007] 2 SCR 292}}{{perSCC|Lebel J}}{{atL|1rq5n|88}}<br>
</ref>
</ref>


Line 239: Line 251:
</ref>
</ref>
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.<ref>
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.<ref>
{{CanLIIRC|Canada (Attorney General) v Schreiber|1fqtx|1998 CanLII 828 (SCC)}}{{perSCC|Lamer CJ}}{{atL|1fqtx|28}}<br>
{{CanLIIRPC|Canada (Attorney General) v Schreiber|1fqtx|1998 CanLII 828 (SCC)|[1998] 1 SCR 841}}{{perSCC|Lamer CJ}}{{atL|1fqtx|28}}<br>
</ref>
</ref>


Line 252: Line 264:
{{LegHistory10s|2019, c. 25}}, s. 66.
{{LegHistory10s|2019, c. 25}}, s. 66.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|188.1}} CCC]
|{{CCCSec2|188.1}}
|{{NoteUp|188.1}}
|{{NoteUp|188.1}}
}}
}}
Line 261: Line 273:
{{LegHistory90s|1993, c. 40}}, s. 9.
{{LegHistory90s|1993, c. 40}}, s. 9.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|188.2}} CCC]
|{{CCCSec2|188.2}}
|{{NoteUp|188.2}}
|{{NoteUp|188.2}}
}}
}}


==See Also==
==See Also==
* [[Applications for Judicial Authorizations]]
* [[Special Search Issues]]
* [[Special Search Issues]]
* [[Seizure of Property]] - seizure under 489
* [[Seizure of Property]] - seizure under 489
* [[Plain View Search and Seizure]]
* [[Plain View Search and Seizure]]
* [[Detention Order for Things Seized Under Section 489 or 487.11]]
* [[Detention Order for Things Seized Under Section 489 or 487.11]]

Latest revision as of 20:30, 3 September 2024

This page was last substantively updated or reviewed January 2023. (Rev. # 96329)

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]

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 R v Rafferty, 2012 ONSC 703 (CanLII), 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. Woodall, [1991] O.J. No. 3565 (Gen. Div.), aff’d [1993] O. J. No. 4001 (C.A.).
  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

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.

Duty of person executing certain warrants

487.093 (1) A person who executes a warrant issued under subsection 117.04(1), 199(1), 395(1) or 487(1) shall, during that execution,

(a) give the following to any person who is present and ostensibly in control of the building, receptacle or place to be searched:
(i) a copy of the warrant, and
(ii) a notice in Form 5.1 setting out the address of the court before which anything seized during the execution may be brought or from which a copy of a report on anything so seized may be obtained;
(b) affix the copy and the notice in a prominent location within the building or place or on or next to the receptacle, if there is no person present and ostensibly in control of the building, receptacle or place; or
(c) give the copy and the notice to the person to be searched, if the warrant is issued under subsection 395(1) for the search of a person.
Exception

(2) Subsection (1) does not apply if the warrant authorizes the search of anything that is detained under this Act after it has been lawfully seized.

2022, c. 17, s. 22.

–


{{{4}}}

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 (CanLII), (DOJ)

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 (CanLII), (DOJ)

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 (CanLII), (DOJ)

Note up: 188.2

See Also

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