R. v. Capehart, 2025 ONSC 2557
[32] The power of police to engage in a warrantless search on the basis of “exigent circumstances” is well established in Canadian law. Section 487.11 of the Criminal Code provides one statutory avenue under which police may engage in a lawful, yet warrantless, search on the basis of “exigent circumstances”. Other statutory avenues for warrantless searches are available depending on the particular circumstances of a case. For example, ss. 117.02 or 117.04(2) of the Criminal Code, or s. 11(7) of the CDSA; however, these provisions are not applicable in this case.
[33] Section 487.11 of the Criminal Code provides that where a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. A warrantless search may be justified under section 487.11 where: a. The conditions for obtaining a normal search warrant exist [i.e., a warrant under ss.487(1) or 482(1)]; and b. It would be impracticable by reason of exigent circumstances to obtain that warrant.
[34] “Exigent circumstances” and “impracticability” are not defined in section 487.11. In R. v. Paterson, 2017 SCC 15, the majority of the Supreme Court of Canada considered the interpretation of “exigent circumstances” in relation to s. 11(7) of the Controlled Drugs and Substances Act. In summary, the Court held that the search must be “compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety,” and that “this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives”.
[35] While Paterson dealt with a different statutory authority (s.11(7) CDSA, vs. s.487.11 Criminal Code), I agree with the Crown that the language of the two provisions is so similar that there is no basis upon which to distinguish them. The interpretation of these terms in Paterson ought to apply equally to section 487.11 of the Code.
[42] Warrantless searches are presumptively unreasonable. Exigent circumstances only arise where there is a risk to public or officer safety or the destruction or loss of evidence: R. v. Kelsy, 2011 ONCA 605, at para. 24. I can accept that there was sufficient exigency to download the data before the obtaining of a warrant to search the phones. The issue of greatest concern in the present case is the subsequent interval of six days between when the data was downloaded on October 1, and when a warrant was applied for and obtained on October 7. This is too long. It bespeaks a complacency on the part of the police regarding the accused’s s.8 Charter rights. Exigent circumstances should be considered as extraordinary and treated as such. They may be relied upon to justify an intrusion into privacy only where necessary. Any less stringent test would have the effect of the police circumventing the need to obtain prior judicial authorization where it is merely inconvenient or not expedient: R. v. Bakal, 2021 ONCA 584, at para. 19. In this circumstance, while the police may have acted promptly to preserve the potential evidence by the download of data from the phone, they are not entitled to then adopt a leisurely approach to obtaining a warrant. This was clearly not considered a priority. I agree with Justice Brennan that exigent circumstances cannot be used as an excuse merely because it would be more convenient or expedient for the police.
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