Warrantless Overseizure Under Section 489: Difference between revisions
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[[fr:Sursaisie_sans_mandat_en_vertu_de_l'article_489]] | |||
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== | ==General Principles== | ||
{{seealso|Plain View Search and Seizure}} | |||
Section 489 authorizes police officers to seize certain property. Section 489(1) relates to the scenario where the officer is executing a search warrant. Section 489(2) relates to the scenario where the officer is simply in execution of their duties. It specifically addresses the situation where police seek to seize property other than what is specified in a warrant. | Section 489 authorizes police officers to seize certain property. Section 489(1) relates to the scenario where the officer is executing a search warrant. Section 489(2) relates to the scenario where the officer is simply in execution of their duties. It specifically addresses the situation where police seek to seize property other than what is specified in a warrant. | ||
{{ | {{quotation2| | ||
; Seizure of things not specified | ; Seizure of things not specified | ||
489 | 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; | :(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 | :(b) has been used in the commission of an offence against this or any other Act of Parliament; or | ||
| Line 17: | Line 20: | ||
:(c) will afford evidence in respect of an offence against this or any other Act of Parliament.<br> | :(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. | R.S., {{LegHistory80s|1985, c. C-46}}, s. 489; R.S., 1985, c. 27 (1st Supp.), s. 72, c. 42 (4th Supp.), s. 3; {{LegHistory90s|1993, c. 40}}, s. 16; {{LegHistory90s|1997, c. 18}}, s. 48. | ||
| | |{{CCCSec2|489}} | ||
|{{NoteUp|489|1|2}} | |||
}} | }} | ||
; Requirements for 489 | |||
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> | 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> | ||
{{CanLIIRP|Fawthrop|1czsq|2002 CanLII 45004 (ON CA)|166 CCC (3d) 97}}{{perONCA|Borins JA}}{{atL|1czsq|23}} | |||
</ref> | </ref> | ||
# obtained by crime; | # obtained by crime; | ||
| Line 28: | Line 33: | ||
# affords evidence of a crime. | # 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" | 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> | ||
{{CanLIIRx|Bishop|fwsg2|2013 BCSC 522 (CanLII)}}{{perBCSC|Bruce J}}{{atL|fwsg2|179}}<br> | |||
{{CanLIIRx|Sipes|fxhk4|2011 BCSC 1763 (CanLII)}}{{perBCSC|Smart J}}{{atL|fxhk4|203}}<br> | |||
</ref> The legal test for reasonable grounds to believe should be the same as that for [[Warrantless Arrests]]. It must involve "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) | The legal test for reasonable grounds to believe should be the same as that for [[Warrantless Arrests]]. It must involve "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 {{CanLIIRPC|Mugesera v Canada (Minister of Citizenship and Immigration)|1l249|2005 SCC 40 (CanLII)|[2005] 2 SCR 100}}{{TheCourt}}{{atL|1l249|117}} | |||
</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> | |||
{{CanLIIRP|Makhmudov|1s7d0|2007 ABCA 248 (CanLII)|159 CRR (2d) 296}}{{TheCourtABCA}}{{atL|1s7d0|19}}<br> | |||
see also {{supra1|Sipes}}{{atL|fxhk4|204}} | |||
</ref> | </ref> | ||
This section does not codify or incorporate any part of the common law doctrine of "plain view" | ; Overseizure vs Plain view | ||
This section does not codify or incorporate any part of the common law doctrine of "plain view."<ref> | |||
{{CanLIIRP|Bottineau|fkgld|2011 ONCA 194 (CanLII)|269 CCC (3d) 227}}{{TheCourtONCA}}<br> | |||
{{CanLIIRP|Le (T.D.)|frj5d|2011 MBCA 83 (CanLII)|275 CCC (3d) 427}}{{perMBCA|Scott CJ}} - they are not "coextensive"<br> | |||
{{CanLIIRP|RMJT|g6px4|2014 MBCA 36 (CanLII)|311 CCC (3d) 185}}{{perMBCA|Cameron JA}} <br> | |||
contra {{CanLIIRP|Boudreau-Fontaine|fl3zf|2010 QCCA 1108 (CanLII)|QJ 5399}}{{perQCCA|Pelletier JA}}{{atL|fl3zf|50}}<br> | |||
</ref> Not all the elements of the plainview doctrine need to be met to allow for seizure under s. 489(2).<ref> | {{CanLIIRx|L’Espérance|fnlb6|2011 QCCA 237 (CanLII)}}{{perQCCA|Rochette JA}}{{atL|fnlb6|36}}<br> | ||
</ref> | |||
Not all the elements of the plainview doctrine need to be met to allow for seizure under s. 489(2).<ref> | |||
{{CanLIIRP|Frieburg (T.)|fxshh|2013 MBCA 40 (CanLII)|299 CCC (3d) 254}}{{perMBCA|Beard JA}}{{atL|fxshh|67}}<br> | |||
</ref> | </ref> | ||
; Effect of Provision | |||
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> | 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> | ||
{{supra1|Bottineau}}{{ | {{supra1|Bottineau}}{{atL|fkgld|74}}<br> | ||
</ref> | </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> | 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> | ||
{{CanLIIRP|Little|2509x|2009 CanLII 41212 (ON SC)|OJ No 3278}}{{perONSC|Fuerst J}}{{atL|2509x|144}} | |||
</ref> | </ref> | ||
| Line 57: | Line 71: | ||
</ref> | </ref> | ||
; Purpose | |||
The purpose of s. 489(2) is the preservation of evidence.<ref> | The purpose of s. 489(2) is the preservation of evidence.<ref> | ||
{{supra1|RMJT}}{{ | {{supra1|RMJT}}{{atL|g6px4|32}}<br> | ||
</ref> | </ref> | ||
Section 489 allows for the collection of evidence for a separate crime while executing a search based on an initial believed crime.<ref> | Section 489 allows for the collection of evidence for a separate crime while executing a search based on an initial believed crime.<ref> | ||
{{CanLIIRP|Middleton|1fndh|2000 BCCA 660 (CanLII)|150 CCC (3d) 556}}{{perBCCA|Finch J}} - 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 to be related to the initial investigation.<ref> | </ref> | ||
It does not require that the evidence discovered to be related to the initial investigation.<ref> | |||
{{supra1|RMJT}} | {{supra1|RMJT}} | ||
</ref> | </ref> | ||
{{reflist|2}} | |||
===After Initial Seizure=== | ===After Initial Seizure=== | ||
{{seealso|Procedure on Seizure of Property}} | {{seealso|Procedure on Seizure of Property}} | ||
===History of s. 489=== | ===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 | Section 489 was enacted in 1955 as s. 431 of the ''Criminal Code'' S.C. 1953-1954, c. 51. It previously read:<ref> | ||
see {{CanLIIRx|Sipes|fxhk4|2011 BCSC 1763 (CanLII)}}{{perBCSC|Smart J}}{{atL|fxhk4|192}} onward<br> | |||
</ref> | </ref> | ||
{{ | {{quotation1| | ||
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. | 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. | ||
| | | | ||
Latest revision as of 14:40, 14 July 2024
| This page was last substantively updated or reviewed January 2021. (Rev. # 95541) |
General Principles
Section 489 authorizes police officers to seize certain property. Section 489(1) relates to the scenario where the officer is executing a search warrant. Section 489(2) relates to the scenario where the officer is simply in execution of their duties. It specifically addresses the situation where police seek to seize property other than what is specified in a warrant.
- Seizure of things not specified
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.
- Seizure without warrant
(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.
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.
- Requirements for 489
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:[1]
- 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."[2] The legal test for reasonable grounds to believe should be the same as that for Warrantless Arrests. It must involve "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."[3]
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."[4]
- Overseizure vs Plain view
This section does not codify or incorporate any part of the common law doctrine of "plain view."[5] Not all the elements of the plainview doctrine need to be met to allow for seizure under s. 489(2).[6]
- Effect of Provision
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.[7]
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.[8]
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.[9]
- Purpose
The purpose of s. 489(2) is the preservation of evidence.[10]
Section 489 allows for the collection of evidence for a separate crime while executing a search based on an initial believed crime.[11] It does not require that the evidence discovered to be related to the initial investigation.[12]
- ↑ R v Fawthrop, 2002 CanLII 45004 (ON CA), 166 CCC (3d) 97, per Borins JA, at para 23
- ↑
R v Bishop, 2013 BCSC 522 (CanLII), per Bruce J, at para 179
R v Sipes, 2011 BCSC 1763 (CanLII), per Smart J, at para 203
- ↑ see Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 SCR 100, per curiam, at para 117
- ↑
R v Makhmudov, 2007 ABCA 248 (CanLII), 159 CRR (2d) 296, per curiam, at para 19
see also Sipes, supra, at para 204 - ↑
R v Bottineau, 2011 ONCA 194 (CanLII), 269 CCC (3d) 227, per curiam
R v Le (T.D.), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ - they are not "coextensive"
R v RMJT, 2014 MBCA 36 (CanLII), 311 CCC (3d) 185, per Cameron JA
contra R v Boudreau-Fontaine, 2010 QCCA 1108 (CanLII), QJ 5399, per Pelletier JA, at para 50
R v L’Espérance, 2011 QCCA 237 (CanLII), per Rochette JA, at para 36
- ↑
R v Frieburg (T.), 2013 MBCA 40 (CanLII), 299 CCC (3d) 254, per Beard JA, at para 67
- ↑
Bottineau, supra, at para 74
- ↑ R v Little, 2009 CanLII 41212 (ON SC), OJ No 3278, per Fuerst J, at para 144
- ↑
see Little, ibid.
- ↑
RMJT, supra, at para 32
- ↑ R v Middleton, 2000 BCCA 660 (CanLII), 150 CCC (3d) 556, per Finch J - standard search warrant executed for theft of electricity. when grow-op found, no need to get a second CDSA search warrant
- ↑ RMJT, supra
After Initial Seizure
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:[1]
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.
–
- ↑
see R v Sipes, 2011 BCSC 1763 (CanLII), per Smart J, at para 192 onward