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]
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.
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 warrants487.093 (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.
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]
Under s. 488 limits the use of night searches under the Criminal Code:
Execution of search warrant488 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.
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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]
A search of a house should be approached with the highest degree of privacy. [3]
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]
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]
The judge may only consider the circumstances known at the time that the warrant was issued. [11]
Factors to consider include: [12]
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]
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.
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]
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.
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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.
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