Section 487 Search Warrants: Difference between revisions

Latest revision as of 20:31, 3 September 2024

This page was last substantively updated or reviewed January 2023. (Rev. # 96335)

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< Warrant Searches

General Principles

See also: Applications for Judicial Authorizations

A s. 487 search warrant authorizes, for a limited time, the "search" of a "place" for the purpose of "seizing" a "thing". Once the "things" are seized they are then ordered detained under a s. 490 detention order.

The face of the warrant is what empowers a peace officer to search the identified location for specified evidence.^[1]

Relationship Between the Warrant and the ITO

The Information to Obtain (ITO) is the evidence that gives the issuing justice grounds to grant the order to search. ^[2] The ITO is not part of the warrant that the authorized officer is expected to examine. They only need to be familiar with the face of the order to understand the scope of the search.^[3]

Proper interpretation can be done through the use of the "fellow officer test", which asks whether a fellow officer would understand what is being sought and where the search is permitted based solely on reviewing the face of the warrant.^[4]

Time

Where not specified on the face of the warrant, all authorizations have the implied requirement that the warrant be executed "within a reasonable amount of time of being issued", which generally expects the same day as issuance.^[5]

There is nothing inappropriate with setting an extended window of several days in which the warrant may be executed.^[6]

↑ R v Townsend, 2017 ONSC 3435 (CanLII), 140 WCB (2d) 240, per Varpio J, at para 53
Re Times Square Book Store and the Queen, 1985 CanLII 170 (ON CA), 21 CCC (3d) 503, per Cory JA
R v Parent, 1989 CanLII 217 (YK CA), 47 CCC (3d) 385, per Locke JA (3:0)
R v Ricciardi, 2017 ONSC 2788 (CanLII), OJ No 2282, per Di Luca J
R v Merritt, 2017 ONSC 80 (CanLII), OJ No 6924, per F Dawson J
↑ Townsend, supra, at para 53
↑ Townsend, supra, at para 53
↑ Townsend, supra, at para 53
R v Rafferty, 2012 ONSC 703 (CanLII), OJ No 2132, per Heeney J, at para 103
↑ R v Saint, 2017 ONCA 491 (CanLII), per Miller JA re s. 11 CDSA warrants. Note s. 11 does not set out time as an essential element to a search.
↑ R v Paris, 2015 ABCA 33 (CanLII), 588 AR 376 re s. 11 CDSA warrant set for 48 hours.

Power to Authorize a Warrant

The section states:

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 [forms] that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been ~~or is suspected to have been~~* committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect of it to, a justice in accordance with section 489.1 [restitution of property or report by peace officer].

[omitted (2), (2.1), (2.2), (3), (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.
* [see below re Constitutionality]

[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487 (1)

Defined terms: "Act" (s. 2), "justice" (s. 2), "offence-related property" (s. 2), "person" (s. 2), "public officer" (s. 2), and "territorial division" (s. 2)

Purpose of Search

The purpose of s. 487 warrants is the "allow the investigators to unearth and preserve as much relevant evidence as possible" by authorizing them "to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability."^[1]

↑ CanadianOxy Chemicals Ltd. v Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743, per Major J (7:0), at para 22

Test to Authorize a Search

See also: Reasonable and Probable Grounds

Section 487(1) requires that the "justice" be "satisfied by the information on oath" that there are "reasonable grounds to believe" that:^[1]

there is a thing in a "building, receptacle or place";
the thing is:
- "on or in respect of which any offence against this Act or any other Act of Parliament has been ~~or is suspected to have been~~ committed" (487(1)(a)),
- that for which "there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,"(487(1)(b))
- that for which "there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant" (487(1)(c))
- "offence-related property" (487(1)(c.1))

The four key elements of an ITO for a section 487 warrant should include:^[2]

the place to be searched;
the items to be searched for;
what offences these items are evidence of; and
the time period in which the search is to occur.

A list of requirements of an ITO should include facts establishing grounds of belief for:^[3]

the existence of thing to be searched for;
the location of the thing to be searched for;
the location of search is a building, receptacle or place;
the building, receptacle or place is present at location;
the offence alleged has been (or suspected of being) committed as described; and
the thing to be searched for affords evidence of the commission of the offence or possession of the thing is an offence itself.

The evidence within the ITO must permit the officer to form reasonable and probable grounds. The affiant must specify their reasonable grounds within the ITO.

A warrant under section 486(1)(b) cannot authorize the search and seizure of "things... that are being sought as evidence in respect of the commission, suspected commission or intended commission of an offence..."^[4]

Outside of Criminal Code

The warrant provisions of the Criminal Code also applies to all other federal statutes even those with search provisions. ^[5]

"Justice"

A "justice" is defined in s. 2 of the Code as referring to provincial court level judges.^[6]

Severance of Words

Where words or phrases are superfluous or invalid, the reviewing judge may generally sever that text from the warrant.^[7]

↑ see also R v Ha, 2009 ONCA 340 (CanLII), 245 CCC (3d) 546, per MacPherson JA
R v Canadian Broadcasting Corp. v Lessard, 1991 CanLII 49 (SCC), [1991] 3 SCR 421
↑ R v Richards, 2019 ONSC 3306 (CanLII), per Ducharme J, at para 14
↑ R v Chhan, 1996 CanLII 7025 (SK QB), 142 Sask R 232, per Laing J - lists 5 requirements
R v Turcotte, 1987 CanLII 984 (SK CA), 39 CCC (3d) 193, per Vancise JA, at p. 14
R v Adams, 2004 CanLII 12093 (NL PC), NJ No 105, per Gorman J, at para 24
↑ R v Branton, 2001 CanLII 8535 (ON CA), 154 CCC (3d) 139, per Weiler JA, at para 35
↑ R v Multiform Manufacturing Co., 1990 CanLII 79 (SCC), [1990] 2 SCR 624, per Lamer J
↑ Definition of Judicial Officers and Offices
↑ R v Nguyen, 2017 ONSC 1341 (CanLII), 139 WCB (2d) 27, per Fairburn J, at para 116
R v Grabowski, 1985 CanLII 13 (SCC), [1985] 2 SCR 434, per Chouinard J
R v Sonne, 2012 ONSC 584 (CanLII), 104 WCB (2d) 876, per Spies J

"Offence(s)" Being Investigated

The ITO must specify a particular offence that is being investigated.^[1]

The ITO must also set out the evidentiary basis that makes out the offence.^[2]

Factual Grounds of Belief

It must not simply include "conclusory" statements but rather the factual grounds for the conclusions.^[3] A conclusory statement is "where an affiant states their belief but none of the underlying facts, thereby preventing an objective assessment of the affiant’s belief."^[4]

Wording of the Offence

Identity of Culprit

It is not necessary that the suspect be named. It is enough to say "unknown persons."^[5]

Description of the Offence

An ITO must set out "a clear description of the offence being investigated". A lack of description will invalidate a warrant.^[6] It is not necessary that the description set out the specific charge or be of quality for pleadings at trial.^[7]

It is not necessary that the ITO be as specific in the offence as the wording in the indictment.^[8]

The ITO and warrant must be equally sufficient. The warrant must have enough information that the recipient of the warrant must be able to identify "the various elements of [the] offence."^[9]

Value of Evidence to the Offence

The authorizing justice need not be satisfied that the offence was committed or that the items seized will afford evidence in proving the offence. The justice need only be satisfied that there are reasonable grounds for believing that the items can be of assistance to establishing the commission of the offence and that they are in the premises to be searched.^[10]

Examples

Evidence supporting a charge of accessing child pornography cannot support a warrant based on an investigation for possessing child pornography. ^[11]

↑ R v Dombrowski, 1985 CanLII 182 (SK CA), 18 CCC 164, per curiam
↑ Capostinsky v Olsen, 1981 CanLII 643 (BC SC), 10 MVR 221, per Berger J - warrant quashed due to a conclusory statement by officer that BAC level was over 0.08 R v Cunsolo, 2008 CanLII 51468 (ON SC), 180 CRR 225, per Hill J, at para 73 - ITO must describe how fraud was committed
↑ Restaurant Le Clémenceau Inc. v. Drouin, 1987 CanLII 54 (SCC), [1987] 1 SCR 706
Re Criminal Code, [1997] O.J. No. 4393 at para 10
R v Stockton Financial Services Co, 1990 CanLII 10950 (MB CA), (1990) 60 CCC 527 (Man CA), per Huband JA and Lyon JA
R v Harris, 1987 CanLII 181 (ON CA), 35 CCC (3d) 1, per Martin JA
R v Sunner, 2017 BCSC 2445 (CanLII), per Riley J at para 31 (" It is trite law that an affiant cannot simply recite conclusory statements that are material to the application without setting out any factual underpinning allowing the issuing justice to evaluate the factual basis for the conclusion.")
↑ R v Pilkington (No. 1), 2013 MBQB 79 (CanLII), 290 Man R (2d) 109, per Mainella J, at para 54
↑ R v Sanchez, 1994 CanLII 5271 (ON SC), 93 CCC (3d) 357, per Hill J ("in the instance of the crime of conspiracy such identification constitutes a significant investigative challenge ...The offence is not infrequently investigated, for some duration, as committed by "a person or persons at present unknown"."
↑ R v Anderson and Slater, 2012 BCPC 496 (CanLII), per Jardine J, at para 37
R v Branton, 2001 CanLII 8535 (ON CA), 154 CCC (3d) 139, per Weiler JA (3:0), at paras 35 to 37 - simply stating the act without mention of the specific offence is not enough
R v Dombrowski, 1985 CanLII 182 (SK CA), 18 CCC (3d) 164, per Tallis JA
↑ Anderson and Slater, supra, at para 37
R v Times Square Book Store, 1985 CanLII 170 (ON CA), 21 CCC (3d) 503, per Cory JA, at p. 512
↑ R v Royal American Shows Incorporated, 1975 CanLII 260 (AB QB), 6 WWR 571, per Cavanagh J
↑ R v Smith, 2004 SKQB 516 (CanLII), per Zarzeczny J, at para 30 ("the various elements of an offence must be sufficient, even in a warrant, to identify, to a person confronted with a warrant to search his dwelling, the offences in respect of which the warrant authorizes the search.")
↑ R v Kent, 1993 CanLII 3231 (NS CA), 338 APR 348, per Hallett JA (3:0)
cf. R v Lemon, [2004] OJ No 6043 (Ont. S.C.)(*no CanLII links)
↑ R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J (4:3), at paras 13 to 38

"Place" to be Searched

Section 487 permits the search of "a building, receptacle or place".

The meaning of "place" is primarily treated as a territorial concept rather than an informational one.^[1]

A search warrant for a "place" will generally give authority to also search places and receptacles in that place.^[2]

It is a fundamental requirement that the warrant must precisely identify the location to be searched. ^[3]

A description that fails to describe the location will invalidate the warrant.^[4]

Precision is necessary in the identification of the place to be searched. Police need to know the proper scope of their authorization. Vagueness can lead to searches of the wrong location and can lead to abuse.^[5] Imprecision leaves those subject to the warrant in doubt about whether there is a presumptively valid warrant to search the premises.^[6]

The ITO must sufficiently describe the location to be searched.^[7] The description should be appropriate "description should be appropriate to the nature of the locus in question."^[8]

What constitutes sufficient description will vary on the location and circumstances of the offence.^[9]

↑ R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ (“The factor of ‘place’ was largely developed in the context of territorial privacy interests, and digital subject matter, such as an electronic conversation, does not fit easily within the strictures set out by the jurisprudence.”)
↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at para 39
↑ R v Ting, 2016 ONCA 57 (CanLII), 333 CCC (3d) 516, per Miller JA, at para 48 ("An adequate description of the place to be searched is a fundamental component of a search warrant. Its importance cannot be overstated")
R v Le, 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ, at para 77
↑ R v Comic Legends, 1987 CanLII 3213 (AB QB), 40 CCC (3d) 203, per Virtue J
R v Cranham, 2010 ONSC 6699 (CanLII), per McKinnon J, at para 17
Re McAvoy (1971), 12 C.R.N.S. 56 (N.W.T. Terr. Ct)(*no CanLII links) , per Morrow J at p. 65 ("To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant fails to adequately describe the offence, fails to accurately describe the premises to be searched, or fails to give an accurate description of the articles to be seized then it will be invalid.")
Ting, supra, at para 50 ("a warrant that does not adequately describe the place to be searched is invalid")
↑ R v Wisdom, 2012 ONCJ 54 (CanLII), per Lipson J, at para 45
Fontana, "The Law of Search and Seizure" (8th ed.), at p. 87 (“the search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself...Vagueness in the description of premises invites, as a consequence, mistaken searches of wrong places or premises or innocent premises and remedial consequences under the Canadian Charter of Rights and Freedoms”)
Ting, supra, at para 49 ("Without an adequate description of the premises, the issuing justice of the peace would not be assured that he or she is not granting too broad an authorization, or an authorization without proper reason. The police officers called on to execute the search warrant would not know the scope of their search powers")
↑ Ting, supra, at para 49 ("those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching their premises.")
↑ R v Parent, 1989 CanLII 217 (YK CA), 47 CCC (3d) 385, per Locke JA
↑ Fontana
↑ Ting, supra, at para 51 ("Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case.")

Motor Vehicles

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for.^[1] The motor vehicle can be the thing to be searched for or the place to be searched, depending on the circumstances. Where it is the thing to be searched for, it can be seized by police and then subject to any examinations necessary. Where it is the place to be searched, it must be returned to the older immediately on completion of the search.^[2]

↑ R v Rafferty, 2012 ONSC 703 (CanLII), OJ No 2132, per Heeney J, at para 43
↑ R v Rafferty, 2012 ONSC 703 (CanLII), OJ No 2132, per Heeney J, at para 48

Residences

A warrant to search a residence should be appropriate for the context. A single family home should include municipal address, including number, street, town or city.^[1]

A warrant authorizing the search of a dwelling-house will generally not include motor vehicles, particularly where the ITO does not address the existence and relevance of the motor vehicle.^[2]

For a search of an apartment building, the warrant must specify the unit number.^[3]

A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section.^[4]

Where the ITO is inconsistent with the warrant some level of error is permissible as long as the location remains sufficient clear.^[5]

It is possible for a single ITO and warrant to describe and authorize several premises.^[6]

A warrant must distinguish between units in a multi-unit buildings as each unit has equal privacy to a single residence.^[7]

Wrong Address

A warrant that outlines a wrong address results in the search of the correct address to be deemed warrantless.^[8]

A wrong address on the warrant cannot be amended.^[9]

↑ Fontana, "The Law of Search and Seizure" (8th ed.), at p. 87
↑ R v Vu, 2004 BCCA 230 (CanLII), 184 CCC (3d) 545, per Frankel JA (2:1) - appealed to SCC
↑ R v Wisdom, 2012 ONCJ 54 (CanLII), per Lipson J, at para 44 ("The warrant fails to specifically authorize a search of apartment 303 which is where the applicants resided")
↑ R v Sexton, 2011 NBCA 97 (CanLII), 978 APR 249, per Bell JA (3:0), at paras 4 to 9
↑ R v Parker, 2006 NBPC 38 (CanLII), 812 APR 235, per Ferguson J - address on warrant varied from address in ITO. ITO address was correct. Warrant found valid.
R v Jacobson, 2009 ONCA 130 (CanLII), per curiam - correct address in ITO, error in warrant address. Warrant valid to search car only, lower expectation of privacy in car
↑ R v NM, 2007 CanLII 31570 (ON SC), 223 CCC (3d) 417, per Hill J, at para 363
↑ R v Ting, 2016 ONCA 57 (CanLII), 333 CCC (3d) 516, per Miller JA, at para 51
↑ R v Pampena, 2022 ONCA 668 (CanLII), per Feldman JA, at para 24
↑ R v Sieger v Barker, 1982 CanLII 634 (BC SC), 65 CCC (2d) 449, per McEachern CJ

"Thing" to be Searched For and Seized

A search warrant can only be used to seize tangible objects. This means that intangibles, such as money, are not applicable.^[1]

"Will Afford Evidence"

The phrase "will afford evidence" is treated as interchangable with "may be obtained", "could be obtained", "will be obtained", and "may afford evidence". They all will require "credibility based probability" that the thing sought will be found.^[2]

Computer Devices

A computer can be a "thing" and not a "place" within the meaning of s. 487.^[3] This is generally since a "thing" is generally a corporeal object and the data on the machine does not meet that definition. The computer, once seized, can be examined pursuant to police access rights to items held under s. 490.

Articles Worn by Person

Such a warrant, however, cannot be used to search a person or seize anything on a person.^[4]

Finger Prints

Finger prints cannot be taken with a 487 warrant.^[5]

Foreign Objects Found inside a Person

A bullet found inside an accused person cannot be included.^[6]

DNA on Bandages

A standard warrant may be used to seize a disposed bandage in order to perform a DNA test on it. DNA warrant is not necessary.^[7] However, where the bandage is still being worn at the time there is a suggestion that a 487 warrant would not be valid and a DNA warrant would be the correct route.^[8]

Blood Vials

A warrant may be used to seize blood vials taken from the accused. There is no need to exhaust other options such as making a blood demand first.^[9]

Motor Vehicles

The motor vehicle can be the thing to be searched for or the place to be searched, depending on the circumstances. Where it is the thing to be searched for, it can be seized by police and then subject to any examinations necessary. Where it is the place to be searched, it must be returned to the older immediately on completion of the search.^[10]

Basket Clauses

The language of the warrant should be as specific as possible. It is undesirable to include phrases such as "and other relevant things."^[11] Use of "basket clauses" may be treated as redundant and will be severed from the text.^[12] The main determiner is whether the clause makes the descriptions of the things too "vague, overboard and lacking in certainty".^[13]

Level of Detail

While previously necessary, there is no need for the affiant to describe the items in "scrupulous exactitude".^[14]

↑ R v Bank du Royal Du Canada, 1985 CanLII 3629 (QC CA), 18 CCC (3d) 98, per Kaufman JA
↑ R v Brand and Ford, 2006 BCSC 305 (CanLII), 216 CCC (3d) 65, per Blair J, at paras 28, 32 to 33
↑ R v Barwell, [2013] OJ No 3743 (C.J.)(*no CanLII links) , per Paciocco J
R v Weir, 2001 ABCA 181 (CanLII), 156 CCC (3d) 188, per curiam (3:0), at para 19
R v Fedan, 2016 BCCA 26 (CanLII), 89 MVR (6th) 188, per Smith JA (3:0), at para 73 - airbag data recorder
cf. R v KZ, 2014 ABQB 235 (CanLII), 589 AR 21, per Hughes J
↑ R v Legere, 1988 CanLII 129 (NB CA), 43 CCC (3d) 502, per Angers JA (3:0)
↑ R c Bourque, 1995 CanLII 4764 (QC CA), per Tourigny JA (3:0)
↑ R v Laporte, 1972 CanLII 1209 (QC CS), (1972) 8 CCC (2d) 343, per Hugessen J
↑ R v Kaba, 2008 QCCA 116 (CanLII), per Doyon JA (3:0), at para 32
↑ R v Miller, 1987 CanLII 4416 (ON CA), 62 OR (2d) 97, 38 CCC (3d) 252, per Goodman JA - bandage not permitted while person is wearing it
↑ R v O’Brien, 2007 ONCA 138 (CanLII), 2005 CarswellOnt 10009, per curiam (3:0)
↑ R v Rafferty, 2012 ONSC 703 (CanLII), OJ No 2132, per Heeney J, at para 48
↑ R v JEB, 1989 CanLII 1495 (NS CA), 523 CCC (3d) 224, per Macdonald JA re "other sexual aids" clause
↑ R v WCS, 2000 CanLII 28289 (NS SC), 581 APR 52, per Saunders J, at para 56
↑ Church of Scientology and The Queen (No. 6), Re, 1987 CanLII 122 (ON CA), 31 CCC (3d) 449, per curiam
↑ Church of Scientology, ibid.
R v Nguyen, 2017 ONSC 1341 (CanLII), 139 WCB (2d) 27, per Fairburn J
BGI Atlantic Inc v Canada (Minister of Fisheries & Oceans), 2004 NLSCTD 165 (CanLII), 717 APR 206, per LeBlanc J
R v Rollins, 1991 CanLII 490 (BC SC), per MacKinnon J

Connecting the Thing to the Location

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.^[1]

The affiant must establish a link between the believed committed offences as well as any evidence of the offence and the belief that it will be found on the premises.^[2]

The informant must pledge that the items not simply "could" be found but would be found. ^[3]

Rooming House

All rooms within a rooming house has the same level of privacy as a single residence.^[4] An ITO proposing to search several units within a multi-unit dwelling should "clearly [set] out reasonable and probable grounds for each unit to be searched."^[5]

Relationship Between "Thing" and Offence

Section 487 sets out four types of relationships between the thing to be searched for and seized and the offence investigated. They are:

"anything on or in respect of which an offence ... has been ... committed" (s. 487(1)(a))
"anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence..." (s. 487(1)(b))
"anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant" (s. 487(1)(c))
"any offence-related property" (s. 487(1)(c.1))

Constitutionality

The clause "suspected to have been" made in s. 487(1)(a) is likely to be found unconstitutional and should be read out of the section.^[6]

↑ R v Turcotte, 1987 CanLII 984 (SK CA), 39 CCC (3d) 193, per Vancise JA
↑ e.g. R v Davis, 2012 ABPC 125 (CanLII), 260 CRR (2d) 182, per Lamoureux J, at para 26
e.g. R v Morse, 2006 CanLII 63690 (ON SC), 148 CRR (2d) 350, per Nordheimer J
Turcotte, supra
↑ R v Kelly, 2010 NBCA 89 (CanLII), 265 CCC (3d) 88, per Drapeau CJ, at para 39
↑ R v Campbell, 2011 SCC 32 (CanLII), [2011] 2 SCR 549, per Charron J (7:0), at para 15
↑ Campbell, ibid., at para 15
↑ See also R v Fedossenko, 2013 ABCA 164 (CanLII), at paras 19 to 20
R v Chabinka, 2009 ONCJ 175 (CanLII), at paras 34 to 44

Power to Order

Section 487(1) permits the justice, once satisfied he is able to authorize a search warrant, may order a "peace officer" to "search the building, receptacle or place for any such thing and to seize it", and, "as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice".

Content of the 487 Warrant

The body of the warrant must meet several requirements to be facially valid. There must be:^[1]

an authorized officer;
an authorized device, investigative technique, procedure, or act; and
private property to be searched or seized.

The sufficiency of the description of the place must be assessed based on the face of the warrant, separately from the contents of the ITO or the manner it was executed.^[2] Failure to name a place on the warrant "is not a mere matter of procedural defect, but so fundamental as to render the document of no legal effect."^[3]

There is no need to specify the identity of the suspect, and simply refer to them as "persons unknown."^[4]

Forms

Section 487(3) requires that Form 5 be used in a search warrant:

487
[omitted (1), (2), (2.1) and (2.2)]

Form

(3) A search warrant issued under this section may be in the form set out as Form 5 [forms] in Part XXVIII [Pt. XXVIII – Miscellaneous (ss. 841 to 849)], varied to suit the case.
(4) [Repealed, 2019, c. 25, s. 191]
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]

– CCC (CanLII), (DOJ)

Note up: 487 (3)

↑ see the language of s. 487.01
↑ R v Parent, 1989 CanLII 217 (YK CA), 47 CCC (3d) 385, per Locke JA (3:0) - no address whatsoever on warrant, but address present in ITO
↑ Parent
↑ R v Sanchez, 1994 CanLII 5271 (ON SC), 93 CCC (3d) 357, per Hill J

Name of Authorized Officer

A warrant under 487 and 487.1 need not state in the body of the warrant the identity of the officer authorized to execute the search. Failure to do so will not be fatal.^[1]

↑ {R v Lucas, 2009 CanLII 43418 (ONSC), [2009] OJ No 5333 (Ont Sup Ct J), per Nordheimer J, at paras 9 to 12
R v Benz, 1986 CanLII 4641 (ON CA), 27 CCC (3d) 454, per MacKinnon ACJO
R v KZ, 2014 ABQB 235 (CanLII), 589 AR 21, per Hughes J

Description of Premises to be Searched

A search warrant must specify the premises that is to be searched.^[1]

An "adequate" description of the place to be searched is a "fundamental component" to the authorization.^[2]

There must be enough information that the authorizing justice is assured they are not granting "too broad" an authorization or one that is "without proper reason".^[3]

An authorization that is not "adequate" in invalid.^[4] What is "adequate" will vary on the case and circumstances.^[5]

For a multi-unit building, it is not enough to simply provide an address. There must be specific information on the location within the building.^[6]

A warrant of a premises must accurately describe the location to be searched. If it fails to do so the warrant will be invalid.^[7]

Wrong Address

If the address in the warrant is wrong, the search becomes warrantless.^[8]

It is not possible to amend a warrant once granted.^[9]

↑ s. 487(1)
McGregor and The Queen, Re, 1985 CanLII 3539 (MB QB), 23 CCC (3d) 266, per Oliphant J
↑ R v Ting, 2016 ONCA (CanLII), 333 CCC (3d) 516, per Miller JA
↑ Ting, ibid.
↑ Ting, ibid.
↑ Ting, ibid. ("Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case.")
↑ Ting, ibid. ("With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building from others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling.")
↑ R v Re McAvoy (1970), 12 CRNS 56 (NWTSC)(*no CanLII links) , at para 57 ("To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant ... fails to accurately describe the premises to be searched ... then it will be invalid")
↑ see R v Krammer, 2001 BCSC 1205 (CanLII), [2001] BCJ No 2869 (S.C.), per McEwan J
R v Silvestrone, 1991 CanLII 5759 , per Toy JA (2:1), at pp. 130-132
↑ Sieger v Barker, 1982 CanLII 634 (BC SC), 65 CCC (2d) 449, per McEachern CJ
R v Jamieson, 1989 CanLII 202 (NS CA), 48 CCC (3d) 287, per MacDonald JA ("The only recourse had was to apply by an information or oath for a new warrant to search the appellant's residence")

Special Use Cases

It is permissible to use a s. 487 warrant to re-seize things in the custody of police under a s. 490 detention order in order to authorize additional examination.^[1]

Computer Searches

Computers are an exception to the receptacle rule as they are "to a certain extent" a separate place that require a separate authorization.^[2] This is because of the high degree of privacy that exists in a home computer and the immense amount of information that they can contain, including information that is automatically generate by the user's activities, and the enduring nature of the data.^[3]

A residential warrant that contemplates the seizure of a computer authorizes the police to examine its data.^[4]

Types of Devices to be Searched

Where a warrant authorizes a residential search for documents without mention of whether computers are included, may still permit the officers to search computer equipment so long as they are only searching for the documents authorized by the warrant. No special mention of computers is needed.^[5]

↑ R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J (4:3), at para 128
R v Jones, 2011 ONCA 632 (CanLII), 278 CCC (3d) 157, per Blair JA, at para 36
R v Cole, 2012 SCC 53 (CanLII), [2012] 3 SCR 34, per Fish J, at para 65 ("The police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose of safeguarding potential evidence of a crime until a search warrant could be obtained. " [emphasis removed])
↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at paras 39, 46, 47, 51 and 54
↑ Vu, ibid., at paras 40 to 43
↑ Vu, ibid.
R v Telus Communications Co, 2013 SCC 16 (CanLII), [2013] 2 SCR 3, per Cromwell J (dissenting on another issue)
↑ R v Vu, 2011 BCCA 536 (CanLII), 285 CCC (3d) 160, per Frankel JA -- appealed to 2013 SCC 60 (CanLII)

Manner of Search

See also: Execution of Search Warrants and Special Search Issues

Searches Intruding on Solicitor-Client Privilege

See also: Searches Intruding on Solicitor-Client Privilege

When searching a lawyer's office, the police have a duty to minimize which requires:^[1]

that a search not be authorized unless there is no other reasonable solution and,
that the authorization be given in terms that, to the extent possible, limit the impairment of solicitor-client privilege

Where police can anticipate the search of a location where they have reasonable grounds to believe there may be solicitor-client privilege, the warrant and ITO should include special provisions to protect solicitor-client privilege.^[2]

Where a warrant authorizes the seizure of "legal correspondence", which is presumptively privileged, the correct procedures requires that the documents be placed under seal and then the applicant must identify the documents which are presumed privileged so that the reviewing judge may determine whether privilege actually exists.^[3]

The method of review is a matter of judicial discretion.^[4]

↑ Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193, per LeBel J
↑ e.g. R v Schultz, 2018 ONCA 598 (CanLII), 142 OR (3d) 128, per Brown JA (3:0), at para 5
↑ R v Douglas, 2017 MBCA 63 (CanLII), 10 WWR 446, per Cameron J
↑ R v Husky Energy Inc, 2017 SKQB 383 (CanLII), per Kalmakoff J, at para 12

Computer Search

Computer-related Search Issues