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| Patrick Ducharme |
Most search warrants are now issued pursuant to section 487 of the Code. The provisions of section 487 of the Code have been found to conform to the general requirements for a constitutional search and seizure under the authority of a search warrant.1 The informant police officer must disclose facts upon which the Justice of the peace or Judge may determine the warrant should issue. The Criminal Code contains several provisions that permit the police to search for and seize evidence.2 But section 487 is by far the most important and applies to all federal statutes. Even though other federal and provincial statutes may contain search provisions, the police often rely upon the provisions of section 487 to obtain a search warrant. All searches, even those using a search warrant, are governed by section 8 of the Charter.
Conformity to law is an essential component of reasonableness, although mere minor or technical defects in the warrant do not necessarily mean a search or seizure is in violation of s. 8 of the Charter. However, a search or seizure conducted under a search warrant that is invalid in substance because it was issued upon information that did not set out facts upon which a Justice acting judicially could be satisfied that there were grounds for issuing the warrant under 487(1)(b), or did not meet the minimum requirements of particularity respecting the things to be searched for, is unreasonable under s. 8.3
Criminal Code
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 thereof to, the Justice or some other Justice for the same territorial division in accordance with section 489.1.
489.1: Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,
(a) where the peace officer is satisfied,
(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding, return the thing seized, on being issued a receipt therefore, to the person lawfully entitled to its possession and report to the Justice who issued the warrant or some other Justice for the same territorial division or, if no warrant was issued, a Justice having jurisdiction in respect of the matter, that he has done so; or
(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
(i) bring the thing seized before the Justice referred to in paragraph (a), or
(ii) report to the Justice that he has seized the thing and is detaining it or causing it to be detained to be dealt with by the Justice in accordance with subsection 490(1).
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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