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Canadian Criminal Procedure and Practice/Search and Seizure/Warrant Searches/Execution

< Canadian Criminal Procedure and Practice‎ | Search and Seizure‎ | Warrant Searches

Lawful Entry into a Dwelling House edit

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:[1]

  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.[2]

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".[3]

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). [4]

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.[5]

Hard/Dynamic Entry
A hard entry (or dynamic entry) is an entry into a house without following the "knock-and-announce" common law rule.

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. [6]

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.[7]

  1. ↑ R. v. Cornell, 2010 SCC 31 (CanLII), [2010] 2 S.C.R. 142, at para. 18
  2. ↑ R. v. Pan, 2012 ONCA 581 (CanLII) at para. 40
    also R. v. Cao, 2008 BCSC 139 (CanLII), 167 C.R.R. (2d) 120
  3. ↑ R. v. Pan, 2012 ONCA 581 (CanLII) citing Cornell, at para. 19
  4. ↑ R. v. Pan, 2012 ONCA 581 (CanLII) at para. 38
  5. ↑ See Search and Seizure Law in Canada at p. 17-5
  6. ↑ R. v. Thompson, 2010 ONSC 2862 (CanLII) - deployed a flash-bang device and left house in disarray. R. v. Jordan, 2011 ABQB 105 (CanLII)
  7. ↑ Thompson

Night Searches edit

Under s. 488 limits the use of night searches:

Execution of search warrant
488. A warrant issued under section 487 or 487.1 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.

– CCC

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

A night search will only be granted in "exceptional circumstances".[1] Mere convenience is not enough.[2] The reason for a night search must be found in the text of the ITO to be valid.[3]

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.[4]

  1. ↑ R. v. Sutherland, 2000 CanLII 17034 (ON CA) at para. 25
  2. ↑ R. v. Trieu, 2010 BCCA 540 ("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")
  3. ↑ R v Posternak (1929), 24 Alta. L.R. 202, 51 C.C.C. 426
  4. ↑ R v. Anderson, 2001 BCSC 674 at para 17
    R. v. Sutherland, 2000 CanLII 17034 (ON CA) at para. 33-34
    R. v. Kirkham, 2004 BCSC 1150 at para. 54

Seizure of Evidence edit

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.

See more at Canadian Criminal Procedure and Practice/Search and Seizure/Seizure of Property

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