Mandats de perquisition en vertu de l'article 487

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

Principes généraux

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.

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. 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.

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.

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.

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

Power to Authorize a Warrant

The section states:

Dénonciation pour mandat de perquisition

487 (1) Un juge de paix qui est convaincu, à la suite d’une dénonciation faite sous serment selon la formule 1 [formes], qu’il existe des motifs raisonnables de croire que, dans un bâtiment, contenant ou lieu, se trouve, selon le cas :

a) une chose à l’égard de laquelle une infraction à la présente loi, ou à toute autre loi fédérale, a été commise ou est présumée avoir été commise;

b) une chose dont on a des motifs raisonnables de croire qu’elle fournira une preuve touchant la commission d’une infraction ou révélera l’endroit où se trouve la personne qui est présumée avoir commis une infraction à la présente loi, ou à toute autre loi fédérale;

c) une chose dont on a des motifs raisonnables de croire qu’elle est destinée à servir aux fins de la perpétration d’une infraction contre la personne, pour laquelle un individu peut être arrêté sans mandat;

c.1) un bien infractionnel,

peut à tout moment décerner un mandat autorisant un agent de la paix ou, dans le cas d’un fonctionnaire public nommé ou désigné pour l’application ou l’exécution d’une loi fédérale ou provinciale et chargé notamment de faire observer la présente loi ou toute autre loi fédérale, celui qui y est nommé :

d) d’une part, à faire une perquisition dans ce bâtiment, contenant ou lieu, pour rechercher cette chose et la saisir;

e) d’autre part, sous réserve de toute autre loi fédérale, dans les plus brefs délais possible, à apporter la chose devant un juge de paix, ou en faire rapport, en conformité avec l’article 489.1 [restitution de biens ou rapport par un agent de la paix].

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 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 .

[omis (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) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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."

Test to Authorize a Search

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

• 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:

1. the place to be searched;
2. the items to be searched for;
3. what offences these items are evidence of; and
4. 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:

• 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..."

Outside of Criminal Code

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

"Justice"

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

Severance of Words

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

"Offence(s)" Being Investigated

The ITO must specify a particular offence that is being investigated.

The ITO must also set out the evidentiary basis that makes out the offence.

Factual Grounds of Belief

It must not simply include "conclusory" statements but rather the factual grounds for the conclusions. 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."

Wording of the Offence

Identity of Culprit

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

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. It is not necessary that the description set out the specific charge or be of quality for pleadings at trial.

It is not necessary that the ITO be as specific in the offence as the wording in the indictment.

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."

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.

Examples

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

"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.

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

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

A description that fails to describe the location will invalidate the warrant.

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. Imprecision leaves those subject to the warrant in doubt about whether there is a presumptively valid warrant to search the premises.

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

What constitutes sufficient description will vary on the location and circumstances of the offence.

Motor Vehicles

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for. 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.

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.

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.

For a search of an apartment building, the warrant must specify the unit number.

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

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

It is possible for a single ITO and warrant to describe and authorize several premises.

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

Wrong Address

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

A wrong address on the warrant cannot be amended.

"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.

"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.

Computer Devices

A computer can be a "thing" and not a "place" within the meaning of s. 487. 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.

Finger Prints

Finger prints cannot be taken with a 487 warrant.

Foreign Objects Found inside a Person

A bullet found inside an accused person cannot be included.

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. 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.

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.

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.

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." Use of "basket clauses" may be treated as redundant and will be severed from the text. The main determiner is whether the clause makes the descriptions of the things too "vague, overboard and lacking in certainty".

Level of Detail

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

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.

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.

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

Rooming House

All rooms within a rooming house has the same level of privacy as a single residence. 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."

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:

1. "anything on or in respect of which an offence ... has been ... committed" (s. 487(1)(a))
2. "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))
3. "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))
4. "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.

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:

• 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. 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."

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

Forms

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

487
[omis (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 [formes] in Part XXVIII [Pt. XXVIII – Dispositions diverses (art. 841 à 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) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

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.

Description of Premises to be Searched

A search warrant must specify the premises that is to be searched.

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

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".

An authorization that is not "adequate" in invalid. What is "adequate" will vary on the case and circumstances.

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.

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

Wrong Address

If the address in the warrant is wrong, the search becomes warrantless.

It is not possible to amend a warrant once granted.

See also: Information to Obtain a Search Warrant#Error in Address

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.

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. 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.

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

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.

Manner of Search

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,
2. 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.

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.

The method of review is a matter of judicial discretion.

Computer Search

• Computer-related Search Issues

Voir également

• Applying for Judicial Authorizations
• Contents of the ITO
• Detention Order for Things Seized Under Section 489 or 487.11
• General Warrants
• ITO Drafting and Search Execution Checklist
• Judicial Authorization Chart
• Search Warrant Evidence
• Judicial Authorization Standard of Review
• Execution of Warrants
• Special Search Issues
• Sealing and Unsealing Warrants