Exécution des mandats de perquisition

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois janvier 2023. (Rev. # 3434)

n.b.: Cette page est expérimentale. Si vous repérez une grammaire ou un texte anglais clairement incorrect, veuillez m'en informer à [email protected] et je le corrigerai dès que possible.

• < Fouilles, perquisitions et saisies
• < mandats de perquisitions

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."

Framed differently, an authorization to search a place generally permits searches of receptacles within that place.

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. The "receptacle rule" does not apply.

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.

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.

A search does not become unreasonable simply because, during the execution of the warrant, the police are anticipating to find evidence of other offences.

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."

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."

Wearing Masks During Search

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

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.

"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."

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

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

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.

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.

Delivering a Copy of Warrant

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 warrants

487.093 (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.

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Lawful Entry into a Dwelling House

• Manner of Authorized Entry into a Dwelling House

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."

An officer may not search any person found with a residence to be searched unless there are specific grounds to do so.

Nor can police arrest a person for simply being present inside a suspected drug house. 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.

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 [mandats de perquisition territoriale] or 487.1 [Mandat, etc., par télécommunication] 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) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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.

Application to Provincial Warrants

Any authorization to search a premises under provincial legislation should comply with s. 488(b).

Enhanced Privacy

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

"Exceptional circumstances"

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

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.

Evidence

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

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.

Reasonable grounds standard

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

Considerations

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

Factors to consider include:

• 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 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.

Seizure of Evidence

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.

A search and seizure outside of Canada must comply with local law. 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.

Execution of Wiretap Warrant

Execution in Canada

188.1 An authorization given under section 184.2 [one-party consentement wiretap], 184.3 [écoute téléphonique avec consentement d'une partie par télémandat], 186 [authorization of wiretap] or 188 [écoutes téléphoniques d'urgence] 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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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 [interception pour prévenir des lésions corporelles] or 184.4 [interception immédiate — préjudice imminent] 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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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See Also

• Applying for Judicial Authorizations
• Special Search Issues
• Seizure of Property - seizure under 489
• Plain View Search and Seizure
• Detention Order for Things Seized Under Section 489 or 487.11