Execution of Search Warrants

From Criminal Law Notebook

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]

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.[10]

The wearing of masks by police officers will not render a reasonable search unreasonable and vice versa. [11]

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".[12] The police may stay in the residence beyond the authorized time limit to finish their search.[13]

However, once the search is finished the police must leave immediately.[14] Once departed, the police may not re-enter without a new authorization.[15]

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.[16]

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), 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), per Leblanc J at paras 70-72
    R v Charles, 2012 ONSC 2001 (CanLII), per Molloy J at para 61
  3. ↑ Vu, supra at para 24
  4. ↑ Vu, supra at para 24, 39
  5. ↑ R v Woodall, [1991] O.J. No. 3565 (Gen. Div.)(*no CanLII links) , aff’d [1993] O. J. No. 4001 (C.A.)(*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), per Slatter JA
  9. ↑ Cornell, ibid.
  10. ↑ Cornell, ibid.
  11. ↑ Cornell, ibid. in obiter
  12. ↑ R v Rafferty, 2012 ONSC 703 (CanLII), per Heeney J 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.)."
  13. ↑ Woodall, ibid. at para 57 to 61 aff'd ONCA at para 2
    R v Brown, 2010 ONSC 2280 (CanLII), 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
  14. ↑ R v Shin, 2015 ONCA 189 (CanLII), per Gillese JA at pars 24, 34, and 57
  15. ↑ R v Finlay and Grellette, 1985 CanLII 117 (ON CA), per Martin JA at p. 63
  16. ↑ R v Chuhaniuk, 2010 BCCA 403 (CanLII) para 55

Lawful Entry into a Dwelling House

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.[1]

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:[2]

  1. notice of presence by knocking or ringing the door bell,
  2. notice of authority, by identifying themselves as law enforcement officers and
  3. 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.[3]

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".[4]

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). [5]

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.[6]

Hard/Dynamic Entry
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.[7]

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. [8] This has been approved in circumstances involving investigation for child pornography.[9]

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.[10]

  1. ↑ R v Cornell, 2010 SCC 31 (CanLII), [2010] 2 SCR 142, per Cromwell J, - knock and announce rule
    See Execution of Search Warrants#Lawful Entry into a Dwelling House
    Also Warrant Arrests#Feeney Warrant of Arrest
  2. ↑ Cornell, supra at para 18
  3. ↑ R v Pan, 2012 ONCA 581 (CanLII), per Laskin JA at para 40
    also R v Cao, 2008 BCSC 139 (CanLII), 167 C.R.R. (2d) 120, per Bruce J
  4. ↑ R v Pan, supra citing Cornell, at para 19
  5. ↑ Pan, supra at para 38
  6. ↑ See Search and Seizure Law in Canada at p. 17-5
  7. ↑ R v Burke, 2013 ONCA 424 (CanLII), per Weiler JA at para 41
  8. ↑ R v Thompson, 2010 ONSC 2862 (CanLII), per Code J - deployed a flash-bang device and left house in disarray. R v Jordan, 2011 ABQB 105 (CanLII), per Mahoney J
  9. ↑ Burke, supra
  10. ↑ Thompson, supra

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), per Frankel JA
  2. ↑ R v Thompson, [1996] O.J. No. 1501 (Ont.Ct.J.-Prov.Div.)(*no CanLII links)
    R v Mutch, 1986 CanLII 2963 (SK QB), (1986), 22 C.R.R. 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), 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]


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The restrictions on night searches under s. 488 do not apply to searches authorized under s. 11 of the CDSA.[1]

A search of a house should be approached with the highest degree of privacy.[2]

An applicant must include a request to perform a night search within the ITO.

A night search will only be granted in "exceptional circumstances".[3] Mere convenience is not enough.[4] The reason for a night search must be found in the text of the ITO to be valid.[5]

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.[6]

A lack of evidence that the entry frightened anyone goes to a finding that the night search was not unreasonable.[7]

If there are any errors in the warrant, the fact that it was a search that took place at night will exaggerate the defects.[8]

Police do not need to establish the necessity for night search, rather just needs to be reasonable grounds.[9]

The judge may only consider the circumstances known at the time that the warrant was issued.[10]

Factors to consider include:[11]

  • 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 the 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. [12]

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.[13]

  1. ↑ R v Shivrattan, 2017 ONCA 23 (CanLII), per Doherty JA at para 60
    R v Dueck, 2005 BCCA 448 (CanLII), per Ryan JA at paras 17-21
  2. ↑ R v Sutherland, 2000 CanLII 17034 (ON CA), 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”)
  3. ↑ Sutherland, ibid. at para 25
  4. ↑ R v Trieu, 2010 BCCA 540 (CanLII), 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")
  5. ↑ R v Posternak (1929), 24 Alta. L.R. 202, 51 CCC 426(*no CanLII links)
  6. ↑ R v Anderson, 2001 BCSC 674 (CanLII), per Morrison J at para 17
    R v Sutherland, 2000 CanLII 17034 (ON CA), per Carthy JA at para 33-34
    R v Kirkham, 2004 BCSC 1150 (CanLII), per Chamberlist J at para 54
  7. ↑ R v MacDonald, 2012 ONCA 244 (CanLII), 290 O.A.C. 21, per Laskin JA at para 30
  8. ↑ Sutherland, supra at paras 12, 25, 29, 30
  9. ↑ R v LVR, 2014 BCCA 349 (CanLII), per Saunders JA
  10. ↑ LVR, ibid.
  11. ↑ LVR, ibid. at paras 24, 25
  12. ↑ R v Phillips, 2011 ONSC 1881 (CanLII) ("The simple statement that some of the items to be searched for maybe easily moved or destroyed, without more, does not suffice.")
  13. ↑ see CDSA Warrants

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), per Lebel J at para 88
  2. ↑ Hape, ibid. at para 88
  3. ↑ Canada (Attorney General) v Schreiber, 1998 CanLII 828 (CanLII), per Lamer CJ at para 28

Execution of Wiretap Warrant

Execution of authorizations
188.1 (1) Subject to subsection (2), the interception of a private communication authorized pursuant to section 184.2, 184.3, 186 or 188 may be carried out anywhere in Canada.
Execution in another province
(2) Where an authorization is given under section 184.2, 184.3, 186 or 188 in one province but it may reasonably be expected that it is to be executed in another province and the execution of the authorization would require entry into or upon the property of any person in the other province or would require that an order under section 487.02 be made with respect to any person in that other province, a judge in the other province may, on application, confirm the authorization and when the authorization is so confirmed, it shall have full force and effect in that other province as though it had originally been given in that other province.
1993, c. 40, s. 9.


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No civil or criminal liability
188.2 No person who acts in accordance with an authorization or under section 184.1 or 184.4 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.


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See Also

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