Les 5 questions qui doivent généralement trouver réponse pour qu'un juge puisse émettre une autorisation judiciaire

R. v. Adams, 2004 CanLII 12093 (NL PC)

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[24]  Generally speaking, there are five main questions which the issuing justice must ensure that an information to obtain a search warrant provides reasonable grounds to answer before he or she agrees to issue a search warrant:

1. that the items specified exist;

2. that the items specified will be found in the place to be searched at the time of the search;

3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;

4. that the items specified will afford evidence of the offence alleged; and

5. that the place to be searched is the location where the items will be located.

[25]  In R. v. Colby, [1999] S.J. No. 915 (Q.B.), at paragraph 10, the essential elements of a C.D.S.A. warrant were described as follows:

...There must be reasonable and probable grounds for believing that the items to be searched for and seized are then in the place for which the warrant is to issue.  If that were not the case police relying on extremely outdated information, could seek and obtain a warrant to search a dwelling house.  Such was not the intention of the legislators.

Le procureur peut conseiller l'affiant dans la rédaction de son affidavit à l'appui d'une autorisation judiciaire sollicitée pour qu'il réponde aux normes établies par la jurisprudence

R. v. Ebanks, 2009 ONCA 851

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[49] While the Crown agent should help the affiant present the evidence in a clear and concise manner and point out any flaws, inconsistencies or ambiguities in the affidavit, he or she should not become an investigator and engage in a wholesale review of the file. This would blur the line between the mutually independent functions of the police and the Crown, each of whom properly maintains a distinct role in the criminal justice system.

L’autorisation de perquisitionner dans un lieu emporte celle de fouiller les espaces et contenants se trouvant dans ce lieu

R. v. Charles, 2012 ONSC 2001

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[61]           Defence counsel argued that the police had no power under the search warrant to open the safe, but rather were required to apply for a second warrant to examine its contents.  I disagree.  The search warrant empowered the police to search the apartment and its contents.  If, in the course of that search, they encountered a desk, they were empowered to look inside the desk.  That would include opening the drawers of the desk and looking inside those drawers.  They would not be required to get a new warrant if a desk drawer was locked.  The warrant provides them with all the authority they need to look inside the locked drawer.  There is nothing about a safe that makes it any different from a locked drawer.  There is every reason to believe that a person who is believed to be a drug dealer, who is found to have crack cocaine and a large amount of cash on his person, and who has a safe in his closet, is likely to have placed either drugs or proceeds or both in the safe.  Indeed, there is every reason to believe that is why he would have acquired a safe in the first place.

*** Note de l'auteur de ce blog: ce passage est cité avec approbation par R. c. Vu, 2013 CSC 60, par 39 ***

Principes régissant les mandats de perquisition et commentaires sur les fouilles d'ordinateurs

R. v Townsend, 2017 ONSC 3435

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Warrants

[53]           Prior to examining computer searches, a brief discussion of warrants is of benefit.  The face of the warrant is the document that empowers police to search a particular location for particular evidence:  Re Times Square Book Store and the Queen, 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503; R. v. Parent, 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385; R. v. Ricciardi, 2017 ONSC 2788; R. v. Merritt, 2017 ONSC 80.  The section of the warrant document known as the “Information to Obtain” provides an issuing justice the grounds to either grant or deny the police the right to search the location described on the face of the warrant for certain evidence.  However, the ITO is not part of the warrant that a searching officer is expected to examine.  Instead, the searching officer is only required to familiarize themselves with the face of the warrant in order to understand the parameters of the search.[4]  As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the “fellow officer” test – that is, would 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: R. v. Raferty, 2012 ONSC 703 at para 103.

[54]           In Ricciardi, Di Luca J. reviewed the guiding principles dealing with search warrants, searches pursuant thereto, and judicial review thereof. At paragraphs 12 to 17, Di Luca J. reviewed the law regarding the issuing of search warrants. At paragraphs 18 to 20, he then reviewed the law as it applies to the role of the reviewing judge:

                                    On a review, the role of reviewing judge is not substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant; see R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCS 285 and R. v. Morelli, supra, at para. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para 99:

      A reviewing judge does not substitute his or her view for that of the justice who issues the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

                        The review is conducted based on the whole of the ITO using a common sense approach to all the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant; see R. v. Morelli at para 167, R.v. Lubell and the Queen (1973), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Ngyuen, supra, at para. 58, R v. Araujo (2000. 2000 SCC 65 (CanLII), 149 C.C.C. (3d) 449 (S.C.C.) and R.v. Persaud, 2016 ONSC 6815 at para. 64.

                        The excision exercise requires that any unlawfully obtained evidence be removed from consideration in assessing the sufficiency of grounds in an ITO, see R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (SCC) and R. v. Wiley 91993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (SCC). While the continued validity of the automatic exclusion approach has been criticized, it remains the law; see R. v. Jasser, 2014 ONSC 6052 at paras. 26-34.

Computer Searches and Warrants

[55]           Special interests are at play when the Courts examine the searches of computers.  Computers carry immense vaults of personal and biographical information.  The search of this information is, by definition, highly invasive.  As Fish J. stated in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para 105:

As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

[56]           Typically, the right to search a location also provides the police with the right to search the receptacles within that location.  Unsurprisingly, given the heightened importance associated with the search of computers, the Supreme Court of Canada in Vu held that computers are different than other receptacles.  The Court stated at paras 40 to 45:

It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer: Morelli, at para. 105; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 3. Computers are "a multi-faceted instrumentality without precedent in our society": A. D. Gold, "Applying Section 8 in the Digital World: Seizures and Searches", prepared for the 7th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007), at para. 3 (emphasis added). Consider some of the distinctions between computers and other receptacles.

First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the "biographical core of personal information" referred to by this Court in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. The scale and variety of this material makes comparison with traditional storage receptacles unrealistic. We are told that, as of April 2009, the highest capacity commercial hard drives were capable of storing two terabytes of data. A single terabyte can hold roughly 1,000,000 books of 500 pages each, 1,000 hours of video, or 250,000 four-minute songs. Even an 80-gigabyte desktop drive can store the equivalent of 40 million pages of text: L. R. Robinton, "Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence" (2010), 12 Yale J.L. & Tech. 311 at pp. 321-22. In light of this massive storage capacity, the Ontario Court of Appeal was surely right to find that there is a significant distinction between the search of a computer and the search of a briefcase found in the same location. As the court put it, a computer "can be a repository for an almost unlimited universe of information": R. v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 69 O.R. (3d) 481, at para. 43.

Second, as the appellant and the intervener the Criminal Lawyers' Association (Ontario) point out, computers contain information that is automatically generated, often unbeknownst to the user. A computer is, as A.D. Gold put it, a "fastidious record keeper" (para. 6). Word-processing programs will often automatically generate temporary files that permit analysts to reconstruct the development of a file and access information about who created and worked on it. Similarly, most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user's interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, "Searches and Seizures in a Digital World" (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.

Third, and related to this second point, a computer retains files and data even after users think that they have destroyed them.

                        …

Computers thus compromise the ability of users to control the information that is available about them in two ways: they create information without the users' knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past.

Fourth, limiting the location of a search to "a building, receptacle or place" (s. 487(1) of the Code) is not a meaningful limitation with respect to computer searches. As I have discussed earlier, search warrants authorize the search for and seizure of things in a "building, receptacle or place" and "permit the search of receptacles such as a filing cabinets, within that place…. The physical presence of the receptacle upon the premises permits the search": Fontana and Keeshan, at p. 1181 (italics in original; underling added). Ordinarily, then, police will not have access to items that are not physically present in the building, receptacle or place for which a search has been authorized. While documents accessible in a filing cabinet are always at the same location as the filing cabinet, the same is not true of information that can be accessed through a computer. The intervener the Canadian Civil Liberties Association notes that, when connected to the Internet, computers serve as portals to an almost infinite amount of information that is shared between different users and is stored almost anywhere in the world. Similarly, a computer that is connected to a network will allow police to access information on other devices. Thus, a search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized.

These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule -- that if the search of a place is justified, so is the search of receptacles found within it -- simply cannot apply with respect to computer searches.

[57]           The Supreme Court of Canada then considered whether or not a properly authorized warrant to search required search parameters. In holding that search parameters were not constitutionally required, the Court stated at paras 53 and 54 of Vu:

The intervener the British Columbia Civil Liberties Association (“B.C.C.L.A.”) submits that, in addition to a requirement that searches of computers be specifically authorized by a warrant, this Court should also find that these warrants must, as a rule, set out detailed conditions, sometimes called "ex ante conditions" or "search protocols", under which the search may be carried out. According to the B.C.C.L.A., search protocols are necessary because they allow authorizing justices to limit the way in which police carry out their searches, protecting certain areas of a computer from the eyes of the investigators. The Crown and intervening Attorneys General oppose this sort of requirement, arguing that it is contrary to principle and impractical. While I am not convinced that these sorts of special directions should be rejected as a matter of principle, my view is that they are not, as a general rule, constitutionally required and that they would not have been required in this case.

While I propose, in effect, to treat computers in some respects as if they were a separate place of search necessitating distinct prior authorization, I am not convinced that s. 8 of the Charter requires, in addition, that the manner of searching a computer must always be spelled out in advance. That would be a considerable extension of the prior authorization requirement and one that in my view will not, in every case, be necessary to properly strike the balance between privacy and effective law enforcement….

[58]           However, the Court did indicate at paras 61 and 62 that parameters may be preferable in certain situations:

By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.

Although I do not find that a search protocol was required on the particular facts of this case, authorizing justices must assure themselves that the warrants they issue fulfil the objectives of prior authorization as established in Hunter. They also have the discretion to impose conditions to ensure that they do. If, for example, an authorizing justice were faced with confidential intellectual property or potentially privileged information, he or she might find it necessary and practical to impose limits on the manner in which a computer could be searched. In some cases, authorizing justices may find it practical to impose conditions when police first request authorization to search. In others, they might prefer a two-stage approach where they would first issue a warrant authorizing the seizure of a computer and then have police return for an additional authorization to search the seized device. This second authorization might include directions concerning the manner of search. Moreover, I would not foreclose the possibility that our developing understanding of computer searches and changes in technology may make it appropriate to impose search protocols in a broader range of cases in the future. Without expressing any firm opinion on these points, it is conceivable that proceeding in this way may be appropriate in some circumstances.

[59]           The Ontario Court of Appeal had considered the “license to scour” a computer described in Vu, in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241.  In Jones, the police seized a computer and searched pursuant to a broadly worded warrant.  In searching the computer, the police analyst discovered child pornography.  The police relied upon the initial warrant to conduct a further search.  The Crown argued on appeal that a computer was an indivisible item and that once police had authority to search the computer, the police could search the entire computer. 

[60]           Blair J.A., writing for the Court, rejected this argument and stated at paragraph 50: 

The police have available to them the necessary software, technology and expertise to enable them to tailor their searches in a fashion that will generate the information they seek, if it exists, while at the same time minimizing the intrusion on the computer user's privacy rights in other information stored on the computer. Sergeant Rumnyak testified that the EnCase software used in this case permits the police to view all data and all files contained on the computer but that the police do not normally look at all files in the course of an investigation; they focus on those they think will generate the evidence they are looking for. That is as it should be.

Dans le cadre de l'exécution d'un mandat de perquisition, les policiers ont l’autorité requise, en vertu de la common law, pour assurer un périmètre de sécurité en autant que ce soit pour des fins de sécurité et non utilisé comme un prétexte à une expédition de pêche

R. v. Chuhaniuk, 2010 BCCA 403

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[59]           In my view, when a warrant has been issued to search one place or premises on a particular property, the police, in the course of executing that warrant, have the authority, at common law, to inspect and enter other places or premises on that property to the extent reasonably necessary to protect themselves and others.  However, they cannot take such action as a matter of course, or on the basis of generalized, non-specific, concerns.  Before acting, they must have a reasonable basis for believing there is a possibility that their safety, or the safety of others, is at risk.

[60]           This view is consistent with the approach that has been taken with respect to the authority of the police to conduct searches incidental to investigative detentions.  In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court of Canada, applying the test set out in R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), held that the police have a common-law power to detain a person for investigation.  The Court also held that, in certain circumstances, the police can conduct a limited protective search of a detainee.  In discussing this common-law search power, Mr. Justice Iacobucci stated:

[40]      The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.  Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk.  ...  The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.  It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

[Emphasis added.]

[61]           Duong is also germane.  In that case, Madam Justice Rowles said this in the course of upholding the search of a person detained for investigation:

[54]      There is no dispute that police officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties:  Ferris [(1998), 1998 CanLII 5926 (BC CA), 126 C.C.C. (3d) 298 (B.C.C.A.)] at para. 54.  Where a police officer has reason to believe that his or her safety is at risk in the course of an investigative detention, the officer is authorized to conduct a protective pat-down search:  Mann, at para. 43.  A “frisk search” for weapons is a relatively brief and non-intrusive procedure:  Mann, at para. 42.  Moreover, the reasonableness of a police officer’s decision to conduct a search for officer safety cannot be judged by a standard that would second-guess the officer’s actions with perfect hindsight:  Ferris, at paras. 58, 71; R. v. Willis (2003), 2003 MBCA 54 (CanLII), 174 C.C.C. (3d) 406, at para. 36 (Man. C.A.).  The “police perception of reasonable necessity depends very much on the particular circumstances in which the police officer finds himself”:  Ferris, at para. 71.

[Emphasis added.]

[62]           Also instructive is the approach that has been taken with respect to unannounced (i.e., no knock) forced entry into a dwelling-house in the execution of a search warrant.  This Court dealt with this question in R. v. Lau, 2003 BCCA 337, 175 C.C.C. (3d) 273, and R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193.  Although the Court did not question that a warrant could be executed in this way in response to concerns for the safety of the police and the occupants of the premises, it held that the decision to take such action must be based on an individualized assessment of the circumstances:  Lau at para. 39.  The need for such an individualized assessment was recently reiterated in R. v. Cornell, 2010 SCC 31, wherein Mr. Justice Cromwell stated:

[20]      Where the police depart from [the knock and announce] approach, there is an onus on them to explain why they thought it necessary to do so.  If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence.  The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach.  The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted.  The Crown cannot rely on ex post facto justifications:  see R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, 1991 CanLII 24 (SCC), [1991] 3 S.C.R.  692, at p. 693.  I would underline the words Chief Justice Dickson used in Genest:  what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”:  p. 90.  I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present”:  para. 24.

[Emphasis added.]

[63]           In R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, the Supreme Court of Canada held that the police, in responding to a 9-1-1 call that handguns were being openly displayed in a parking lot, acted within their common-law powers in setting up a roadblock to stop and check all vehicles leaving that lot.  In that case, Madam Justice Abella (at para. 22) adopted the following statement by Mr. Justice Doherty of the Court of Appeal for Ontario in the judgment appealed from:

Where the prosecution relies on the ancillary power doctrine to justify police conduct that interferes with individual liberties, a two-pronged case-specific inquiry must be made.  First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue.  Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty:  Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.) at 23-24. [Emphasis deleted.]

[64]           In addition, Abella J. stated:

25        In R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 18, this Court accepted the following test developed by Doherty J.A. in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 499, for assessing whether police interference with individual liberties was justified:

[T]he justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

26        In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public.  It was expressed by Le Dain J. in Dedman, as follows:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.  [p. 35]

[65]           There can be no question that police officers are acting in the exercise of a lawful duty when they execute a search warrant.  The critical issue is whether conducting what I would call “security checks” of places or premises on the same property as the place or premises covered by a warrant is a justifiable use of a power associated with that duty.  In my view it is.  As Rowles J.A. stated in Duong, “police officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties”.  Accordingly, if police officers have reasonable grounds to be concerned that there is a possibility that someone who poses an immediate risk to their safety or the safety of others is in such other place or premises, then they can take reasonable steps to minimize that risk.

[66]           An example of when a security check will be justified is found in R. v. Johnson, 2005 BCPC 432.  In that case, the police sought a warrant to search a residence and outbuildings in connection with a marihuana grow-operation investigation.  However, a warrant to search only the residence was granted.  On searching the residence, the police, after arresting the occupants, found evidence of a grow-operation and a loaded semi-automatic weapon.  Being concerned for their safety, the police then entered an outbuilding near the residence in which a television or radio was playing.  That search was upheld on the basis that the situation in which the police found themselves “create[d] exigent circumstances for the need to sweep the out building for officer safety”:  para. 22.

[67]           I now wish to deal with the Crown’s submission that the “exigent circumstances” exception in s. 11(7) of the CDSA provided Corporal Lynch and Corporal Osborne with authority to search the outbuildings.  As I will explain, in my opinion, it did not.

[68]           Section 11(7) is one of many “exigent circumstances” exceptions to warrant requirements Parliament has enacted.  Those legislative changes appear to have been made, at least in part, in response to the decision in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, wherein the Supreme Court of Canada doubted the existence of a common-law power to enter a dwelling-house without a warrant to prevent the destruction of evidence and suggested that the matter be addressed by legislation:  paras. 152, 153.  Although many statutes now contain such provisions, it is sufficient for present purposes to mention only two, both of which are in the Criminal Code:

s. 117.02(1)     Where a peace officer believes on reasonable grounds

(a)        that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or

(b)        that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,

and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.

...

s. 487.11         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.

Section 487(1) is one of the most commonly used search warrant provisions in the Criminal Code.  Such warrants are available to assist in the investigation of any federal offence even when a warrant can be obtained under another statute:  R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at 246-249.  Section 492.1(1) provides for the granting of warrants to use electronic tracking devices.

[69]           In Grant (1993), Mr. Justice Sopinka, in discussing warrantless searches under s. 10 of the now repealed Narcotic Control Act, R.S.C. 1985, c. N-1, said this (at 19):

Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed.

In R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, he said this, in discussing exigent circumstances in the context of an entry into a dwelling-house to effect a warrantless arrest (at 53):

According to James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of a crime.

[70]           Clearly, when police officers have the grounds necessary to obtain a warrant and a reasonable basis to believe that the evidence being sought will be lost or destroyed before a warrant can be obtained, they can act without a warrant.  This is what occurred in R. v. McCormack, 2000 BCCA 57, 143 C.C.C. (3d) 260, where officers lawfully searched an apartment for cocaine pursuant to s. 11(7) of the CDSA, on the basis of a reasonable belief that there was someone inside who could dispose of the drugs before a warrant could be obtained:  paras. 13-29.

[71]           Similarly, as in R. v. Narayan, 2007 BCCA 429, 245 B.C.A.C. 243, there will be situations where safety concerns will satisfy an exigent circumstances exception to a warrant requirement.  In that case, the police responded to a 9-1-1 call from Mr. Narayan arising out of an altercation with his girlfriend.  The officers offered to drive Mr. Narayan home and he placed two guitar cases in the police vehicle.  Based on information provided by the girlfriend, the police had reasonable grounds to believe there was a loaded handgun in one of those cases.  They searched the cases and seized the handgun.  In finding that the search was authorized under s. 117.02(1)(b) of the Criminal Code, Chief Justice Finch stated:

[15]      Here, the officers were involved in a spontaneous investigation in the early morning hours in a residential area.  They were confronted with an immediate need to remove the danger posed by the likelihood a loaded handgun was in one of the guitar cases.  There was no need for further investigation before they acted to alleviate their concerns for the need to protect their own safety.

[72]           While safety concerns can trigger a statutory exigent circumstances exception to a warrant requirement, it does not follow that such concerns will always satisfy those exceptions.  Those concerns must make obtaining a warrant impracticable.  Clearly, this was the situation in Narayan, where prompt action was necessary to remove the potential immediate risk created by the presence of a loaded weapon.

[73]           However, I do not accept that officer-safety concerns that arise only upon, and as a result of, the commencement of a search are sufficient to justify that search being conducted without a warrant.  In this regard, I find apposite the following from the judgment of Mr. Justice La Forest, in Silveira (in para. 87):

To begin with, I do not quite see how officers who enter a house without a warrant can be in a better position to ensure their safety than if they enter with a warrant.  If officers are legitimately in danger from firearms in a dwelling-house, a pre-warrant entrance will not advance their security.  Moreover, many serious crimes, by their very nature, involve firearms.  Does that mean that a search warrant can be avoided every time it is thought firearms may be involved?  Surely not.

The issue in Silveira was the admission of evidence under s. 24(2) of the Charter.  All but one of the seven judges dealt with the case on the basis of the Crown’s concession that the warrantless entry into Mr. Silveira’s residence was unlawful and a violation of his rights under s. 8 of the Charter.  The Court ruled, 5:2, in favour of admitting the evidence.  Mr. Justice La Forest was in dissent.  However, there is nothing in the majority judgment of Mr. Justice Cory that takes issue with the remarks I have just quoted.

[74]           Returning now to what occurred at the McCoubrey Road property, I am of the view that the security checks of the outbuildings were, from the outset, unlawful and violated s. 8 of the Charter.  Although, as found by the trial judge (at para. 121), “the police honestly believed that they needed to conduct a cursory search of [the outbuildings] to ensure their safety”, there is nothing in the record that supports a finding that those concerns were objectively reasonable.  As the trial judge noted (in para. 94), there was no information to suggest that Mr. and Mrs. Chuhaniuk were violent or in possession of weapons or that they associated with known criminals.  Accordingly, the common-law power to minimize any risks associated with the execution of a warrant was not engaged.

[75]           As for s. 11(7) of the CDSA, it does not apply with respect to the shed and the garage for two reasons.  The first is that Corporal Lynch began his security checks of those buildings before he had reasonable grounds to believe they contained drugs or evidence of drug-related offences.  Accordingly, the first requirement of that provision—reasonable grounds to obtain a warrant—was not met.  As for the second requirement—the impracticability of obtaining a warrant—even after Corporal Lynch detected the odour of marihuana outside the shed and garage, there was nothing to indicate that any evidence in those buildings could be lost or destroyed before a warrant could be obtained.

[76]           In so far as the summer house is concerned, Corporal Osborne similarly did not have reasonable grounds to obtain a warrant when he began his security check of that building.  Those grounds only came to light after he entered the premises.

[77]           In conclusion, I would adopt what was said with respect to security checks in R. v. Store, 2008 BCPC 259.  In that case, the police obtained a warrant to search a mobile home and a barn located on rural property for evidence of production of marihuana.  On entering the property, they located and detained Mr. Store outside a blue building that was his residence.  Mr. Store told the police that there was no one inside his residence and that they could not enter it unless they had a warrant authorizing them to do so.  The police, however, entered the residence for “safety reasons” and discovered a grow-operation.  In holding that Mr. Store’s s. 8 Charter rights had been infringed, Judge R.R. Smith stated:

[31]      Officer safety is often of concern when dealing with marihuana grow operations.  The Crown need not prove a probability of potential violence to investigators, but there must be reasonable grounds for the possibility of such violence, before it can be found that exigent circumstances exist for officer safety reasons to search the blue residence.