CDSA Warrants: Difference between revisions

Latest revision as of 12:34, 23 September 2024

This page was last substantively updated or reviewed January 2018. (Rev. # 96486)

< Search and Seizure
< Warrant Searches

General Principles

Section 11(1) of the Controlled Drugs and Substances Act concerns warrants relating to drug offences:

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.

Application of section 487.1 of the Criminal Code

(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.

Execution in Canada

(3) A warrant issued under subsection (1) may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.

Duty of peace officer executing warrant

(4) Section 487.093 of the Criminal Code, other than paragraph 487.093(1)(c), applies with respect to a warrant issued under subsection (1).

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. 112005, c. 44, s. 132017, c. 7, s. 92019, c. 25, s. 3852022, c. 17, s. 66
[annotation(s) added]

– CDSA (CanLII), (DOJ)

Note up: 11 (1), (2), (3), (4), (5), (6), (7), and (8)

Assistance and use of force

12. For the purpose of exercising any of the powers described in section 11 , a peace officer may

(a) enlist such assistance as the officer deems necessary; and

(b) use as much force as is necessary in the circumstances.

– CDSA (CanLII), (DOJ)

Note up: 12

A CDSA search warrant can be issued by a justice of the peace, provincial court judge or superior court judge.^[1]

The requirements for a CDSA search warrant are the same as those under a 487 search warrant.^[2]

Burden of Proof

The standard of "reasonable grounds to believe" is one that is lower than balance of probabilities.^[3]

Night Searches

There are no additional requirements to be satisfied in order to execute a s. 11 CDSA warrant at night.^[4]

↑ R v Agecoutay, 2009 SKCA 100 (CanLII), 247 CCC (3d) 75, per Richards JA, at para 15
↑ R v Law, 2002 BCCA 594 (CanLII), 171 CCC (3d) 219, per Huddart JA, at para 6
↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 81
↑ See s. 488 of the Code for added requirement when using Criminal Code authorizations at night

Report to Justice

Report of seizure, finding, etc.

12.1 Subject to the regulations, every peace officer, inspector or prescribed person who seizes, finds or otherwise acquires a controlled substance, precursor or chemical offence-related property shall, within 30 days,

(a) prepare a report setting out
(i) the substance, precursor or property,

(ii) the amount of it that was seized, found or acquired,

(iii) the place where it was seized, found or acquired,

(iv) the date on which it was seized, found or acquired,

(v) the name of the police force, agency or entity to which the peace officer, inspector or prescribed person belongs,

(vi) the number of the file or police report related to the seizure, finding or acquisition, and

(vii) any other prescribed information;

(b) cause the report to be sent to the Minister; and

(c) in the case of a seizure made under section 11

of this Act, the Criminal Code or a power of seizure at common law, cause a copy of the report to be filed with the justice who issued the warrant or another justice for the same territorial division or, if a warrant was not issued, a justice who would have had jurisdiction to issue a warrant.
2017, c. 7, s. 10.

– CDSA

Note up: 12.1

Sections 489.1 and 490 of the Criminal Code applicable

13 (1) Subject to subsections (2) and (3) , sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] of the Criminal Code apply to any thing seized under this Act.

Sections 489.1 and 490 of Criminal Code applicable

(2) If a thing seized under this Act is non-chemical offence-related property, sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] of the Criminal Code apply subject to sections 16 to 22 and subsections 31(6) to (9) of this Act.

Provisions of this Act applicable

(3) If a controlled substance, precursor or chemical offence-related property is seized under this Act, any other Act of Parliament or a power of seizure at common law, the provisions of this Act and the regulations apply in respect of that substance, precursor or property.

Recognizance

(4) If, under this section, an order is made in accordance with paragraph 490(9)(c) [disposal of things seized – return to lawful owner] of the Criminal Code for the return of any non-chemical offence-related property seized under this Act, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in the amount and with any conditions that the judge or justice directs and, if the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice the sum of money or other valuable security that the judge or justice directs.
(5) and (6) [Repealed, 2017, c. 7, s. 11]
1996, c. 19, s. 13; 2017, c. 7, s. 11.
[annotation(s) added]

– CDSA (CanLII), (DOJ)

Note up: 13 (1), (2), (3), and (4)

Standard of Review

See also: Judicial Authorization Standard of Review

In a CDSA drug offence investigation into a residence, the same standard of review applies as Criminal Code search warrants. The test is specified as inquiring whether "there [was] material in the information from which the issuing judge, drawing reasonable inferences, could have concluded that there were reasonable grounds to believe that a controlled substance, something in which it was contained or concealed, offence related property or anything that would afford evidence of an offence under the CDSA" in the accused's residence.^[1]

↑ R v Shiers, 2003 NSCA 138 (CanLII), [2003] NSJ No 453 (NSCA), per Fichaud JA

@@ Line 1: / Line 1: @@
+[[Fr:Mandats_de_LRCDAS]]
+{{Currency2|January|2018}}
 {{LevelZero}}
 {{HeaderWarrants}}
 ==General Principles==
-<!-- -->
-Section 11(1) of the Controlled Drugs and Substances Act concerns warrants relating to drug offences:
+Section 11(1) of the ''Controlled Drugs and Substances Act'' concerns warrants relating to drug offences:
-{{quotation|
+{{quotation2|
 ; Information for search warrant
-. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
+(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.
-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.
+; Application of section 487.1 of the Criminal Code
-<br>
-'''Application of section 487.1 of the Criminal Code'''<br>
 (2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.
-<br>
-; Execution in another province
+; Execution in Canada
-(3) A justice may, where a place referred to in subsection (1) is in a province other than that in which the justice has jurisdiction, issue the warrant referred to in that subsection and the warrant may be executed in the other province after it has been endorsed by a justice having jurisdiction in that other province.
+(3) A warrant issued under subsection (1) may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.
-<br>
-; Effect of endorsement
+; Duty of peace officer executing warrant
-(4) An endorsement that is made on a warrant as provided for in subsection (3) is sufficient authority to any peace officer to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with the law.
+(4) Section 487.093 of the Criminal Code, other than paragraph 487.093(1)(c), applies with respect to a warrant issued under subsection (1).
-<br>
 ; 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.
@@ Line 34: / Line 35: @@
 :(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
+;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.
@@ Line 40: / Line 41: @@
 (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.
-, c. 19, s. 11; 2005, c. 44, s. 13.
+, c. 19, s. 112005, c. 44, s. 132017, c. 7, s. 92019, c. 25, s. 3852022, c. 17, s. 66
-|[http://canlii.ca/t/7vtc#sec11 CDSA]
+{{Annotation}}
+|{{CDSASec2|11}}
+|{{NoteUpCDSA|11|1|2|3|4|5|6|7|8}}
 }}
-{{Quotation|
+{{quotation2|
 ; Assistance and use of force
-. For the purpose of exercising any of the powers described in section 11, a peace officer may
+. For the purpose of exercising any of the powers described in section 11 {{AnnSecC|11}}, a peace officer may
 :(a) enlist such assistance as the officer deems necessary; and
 :(b) use as much force as is necessary in the circumstances.
-|[http://canlii.ca/t/7vtc#sec12 CDSA]
+|{{CDSASec2|12}}
+|{{NoteUpCDSA|12}}
 }}
-{{quotation|
+A CDSA search warrant can be issued by a justice of the peace, provincial court judge or superior court judge.<ref>
-'''Sections 489.1 and 490 of the Criminal Code applicable'''<br>
+{{CanLIIRP|Agecoutay|25hdt|2009 SKCA 100 (CanLII)|247 CCC (3d) 75}}{{perSKCA|Richards JA}}{{atL|25hdt|15}}</ref>
-. (1) Subject to subsections (2) and (3), sections 489.1 and 490 of the Criminal Code apply to any thing seized under this Act.
-<br>
-'''Sections 489.1 and 490 of the Criminal Code applicable'''<br>
-(2) Where a thing seized under this Act is offence-related property, sections 489.1 and 490 of the Criminal Code apply subject to sections 16 to 22 of this Act.
-<br>
-; Provisions of this Act applicable
-(3) Where a controlled substance is seized under this Act or any other Act of Parliament or pursuant to a power of seizure at common law, this Act and the regulations apply in respect of that substance.
-<br>
-; Report to justice
-(4) Subject to the regulations, every peace officer who, pursuant to section 11, seizes a controlled substance shall, as soon as is reasonable in the circumstances after the seizure,
-:(a) prepare a report identifying the place searched, the controlled substance and the location where it is being detained;
-:(b) cause the report to be filed with the justice who issued the warrant or another justice for the same territorial division or, where by reason of exigent circumstances a warrant was not issued, a justice who would have had jurisdiction to issue a warrant; and
-:(c) cause a copy of the report to be sent to the Minister.
-; Report to justice
-(5) A report in Form 5.2 of the Criminal Code may be filed as a report for the purposes of subsection (4).
-; Recognizance
-(6) Where, pursuant to this section, an order is made under paragraph 490(9)(c) of the Criminal Code for the return of any offence-related property seized under this Act, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in such amount and with such conditions, if any, as the judge or justice directs and, where the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice such sum of money or other valuable security as the judge or justice directs.
-|[http://canlii.ca/t/7vtc#sec13 CDSA]
-}}
-A CDSA search warrant can be issued by a justice of the peace, provincial court judge or superior court judge.<ref>''R v Agecoutay'', [http://canlii.ca/t/25hdt 2009 SKCA 100] (CanLII){{perSKCA|Richards JA}}{{at|15}}</ref>
 The requirements for a CDSA search warrant are the same as those under a 487 search warrant.<ref>
-''R v Law'', [http://canlii.ca/t/5fmb 2002 BCCA 594] (CanLII){{perBCCA| Huddart JA}}{{at|6}}</ref>
+{{CanLIIRP|Law|5fmb|2002 BCCA 594 (CanLII)|171 CCC (3d) 219}}{{perBCCA| Huddart JA}}{{atL|5fmb|6}}</ref>
 ; Burden of Proof
 The standard of "reasonable grounds to believe" is one that is lower than balance of probabilities.<ref>
-''R v Sadikov'', [http://canlii.ca/t/g2tgn 2014 ONCA 72] (CanLII){{perONCA|Watt JA}} at para 81
+{{CanLIIRP|Sadikov|g2tgn|2014 ONCA 72 (CanLII)|305 CCC (3d) 421}}{{perONCA-H|Watt JA}}{{atL|g2tgn|81}}
 </ref>
@@ Line 92: / Line 72: @@
 See [[Execution of Search Warrants#Night Searches|s. 488 of the Code]] for added requirement when using Criminal Code authorizations at night<br>
 </ref>
+{{reflist|2}}
+==Report to Justice==
+{{quotation2|
+; Report of seizure, finding, etc.
+.1 Subject to the regulations, every peace officer, inspector or prescribed person who seizes, finds or otherwise acquires a controlled substance, precursor or chemical offence-related property shall, within 30 days,
+:(a) prepare a report setting out
+::(i) the substance, precursor or property,
+::(ii) the amount of it that was seized, found or acquired,
+::(iii) the place where it was seized, found or acquired,
+::(iv) the date on which it was seized, found or acquired,
+::(v) the name of the police force, agency or entity to which the peace officer, inspector or prescribed person belongs,
+::(vi) the number of the file or police report related to the seizure, finding or acquisition, and
+::(vii) any other prescribed information;
+:(b) cause the report to be sent to the Minister; and
+:(c) in the case of a seizure made under section 11 {{AnnSecC|11}} of this Act, the Criminal Code or a power of seizure at common law, cause a copy of the report to be filed with the justice who issued the warrant or another justice for the same territorial division or, if a warrant was not issued, a justice who would have had jurisdiction to issue a warrant.
+{{LegHistory10s|2017, c. 7}}, s. 10.
+|[{{CDSASec|12.1}} CDSA]
+|{{NoteUpCDSA|12.1}}
+}}
+{{quotation2|
+; Sections 489.1 and 490 of the Criminal Code applicable
+(1) Subject to subsections (2) {{AnnSecC|13(2)}} and (3) {{AnnSecC|13(3)}}, sections 489.1 {{AnnSec4|489.1}} and 490 {{AnnSec4|490}} of the Criminal Code apply to any thing seized under this Act.
+; Sections 489.1 and 490 of Criminal Code applicable
+(2) If a thing seized under this Act is non-chemical offence-related property, sections 489.1 {{AnnSec4|489.1}} and 490 {{AnnSec4|490}} of the Criminal Code apply subject to sections 16 to 22 and subsections 31(6) to (9) of this Act.
+; Provisions of this Act applicable
+(3) If a controlled substance, precursor or chemical offence-related property is seized under this Act, any other Act of Parliament or a power of seizure at common law, the provisions of this Act and the regulations apply in respect of that substance, precursor or property.
+; Recognizance
+(4) If, under this section, an order is made in accordance with paragraph 490(9)(c) {{AnnSec4|490(9)(c)}} of the Criminal Code for the return of any non-chemical offence-related property seized under this Act, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in the amount and with any conditions that the judge or justice directs and, if the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice the sum of money or other valuable security that the judge or justice directs.
+(5) and (6) [Repealed, {{LegHistory10s|2017, c. 7}}, s. 11]
+{{LegHistory90s|1996, c. 19}}, s. 13;
+{{LegHistory10s|2017, c. 7}}, s. 11.
+{{Annotation}}
+|{{CDSASec2|13}}
+|{{NoteUpCDSA|13|1|2|3|4}}
+}}
 {{reflist|2}}
@@ Line 98: / Line 120: @@
 In a CDSA drug offence investigation into a residence, the same standard of review applies as Criminal Code search warrants. The test is specified as inquiring whether "there [was] material in the information from which the issuing judge, drawing reasonable inferences, could have concluded that there were reasonable grounds to believe that a controlled substance, something in which it was contained or concealed, offence related property or anything that would afford evidence of an offence under the CDSA" in the accused's residence.<ref>
-''R v Shiers'', [http://canlii.ca/t/1g3fz 2003 NSCA 138] (CanLII), [2003] NSJ No 453 (NSCA){{perNSCA|Fichaud JA}}</ref>
+{{CanLIIRP|Shiers|1g3fz|2003 NSCA 138 (CanLII)|[2003] NSJ No 453 (NSCA)}}{{perNSCA|Fichaud JA}}</ref>
 {{reflist|2}}
+==See Also==
+* [[Judicial Authorization Chart]]
 {{WarrantNavBar}}