Patrick J Ducharme

Patrick J Ducharme

Continued from Part 1.

487.01: A provincial court Judge, a Judge of a superior court of criminal jurisdiction or a Judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the Judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; Continue reading “General Warrants 487.01 (Part 2)”

Patrick Ducharme

Either a Provincial Court Judge or a Judge of a Superior Court may issue a warrant in writing authorizing a peace officer to use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or person’s property, if the Judge is satisfied by information on oath in writing that there are reasonable grounds to believe that in an offence against the Code or any other Act of Parliament has been or will be committed, and, that information concerning the events will be obtained through the use of the technique, procedure or device.
Continue reading “General Warrants 487.01”

Patrick Ducharme

Continued from part 1

The owner is entitled to make application for the return of the property.1 Section 490 of the Code does not, however, provides specifically for the return of money seized. The proper procedure for obtaining an order for return of monies is an application for replevin. The onus is upon the Crown to establish that the monies, previously in the possession of the applicant, then seized by the police, were tainted by criminality.2 Section 490, while purporting to provide a complete scheme for dealing with property seized in connection with crime, does not deal with seizures of money that fail to comply with the requirement of reasonable grounds. Consequently, a provincial court Judge has no power to order money returned for an unlawful seizure.3

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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Patrick J Ducharme

Pursuant to section 489.1 items seized are brought before a Justice or a report in respect of anything seized is made to the Justice. Where the lawful owner entitled to possession of the things seized is known the Justice shall return the things seized to the lawful owner unless the Justice is satisfied that the detention of the things seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding.1 Nothing should be detained for a period of more than three months after the day of seizure, unless the Justice, on summary application to him, after three days notice to the person from whom the thing was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the Justice so orders.

Continued in part 2

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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Patrick Ducharme

The ITO must specify the “building, receptacle or place, to be searched. The location may be anywhere in Canada. If the location is in a jurisdiction other than the jurisdiction from which the search warrant was issued, a Justice within the jurisdiction where the search will occur must also endorse the warrant prior to execution.1 This is referred to as “backing the warrant.”
Continue reading “Location of Search and Backing the Warrant”

Patrick Ducharme

The person who was the subject of a search may also make application for an impoundment order. An impoundment order is an order issued by a Superior Court Justice requiring the searching authorities to place all items seized in a search into the custody of the court until the court makes a final determination as to the validity of the search and seizure.
Continue reading “Impoundment Orders and Disclosure of ITO”

Patrick J Ducharme

Most search warrants will be challenged at trial before the trial Judge by an application under section 8 of the Charter alleging that the search was unreasonable, notwithstanding the authorization of a Justice or Judge. The search warrant may also be challenged by way of an extraordinary remedy such as certiorari or a motion to quash. This type of application must be brought to the Superior Court of the Province, a court of plenary jurisdiction that has authority over the process of the Provincial Court.
Continue reading “Challenges to the Search Warrant”

Patrick Ducharme

Although the precision required of a charging document is not the standard required in the ITO, sufficient facts must be supplied so that the nature of the offence(s) under investigation is identified to the issuing Justice. The police usually attempt to provide as much information as possible about the alleged offence. They do so because the more information included in the ITO, the less likely the warrant will be struck down on an application pursuant to section 8 of the Charter. The Code provides no right of appeal from an order issuing a warrant.
Continue reading “The Offence (related to a Search Warrant)”

Patrick Ducharme

The search warrant must be executed by day unless otherwise specifically ordered pursuant to section 488 of the Code. The terms “day” and “night” are defined in section 2 of the Code to mean between 6 a.m. and 9 p.m. A police officer must be in charge of the search, however, a person who is not a police officer may assist the police officer. Although the police may use force to break into a place authorized by a search warrant, the use of such force must be reasonable and justified. A police officer may have the assistance of persons, who are not named in the warrant or other persons who are not peace officers, provided that the police officer who obtains the search warrant remains in control of and accountable for the search.
Continue reading “Manner of Execution of Search Warrants”

Patrick J Ducharme

The affidavit sworn in support of an application for a search warrant, referred to as the “Information to Obtain”, or, an ITO, must provide sufficient facts to permit the issuing Judge or Justice to determine whether the warrant should be issued. It must at least contain evidence about the alleged offence, the evidence to be seized, and the location of the search; such that reasonable grounds exist for the Justice to order a search based on the fact that at that location the search will likely afford evidence of an alleged offence. The affiant who signs the affidavit has a duty to be full and frank disclosure of material facts.1 In providing information to the issuing Justice full and frank disclosure is particularly necessary because the application is brought and dealt with ex parte.
Continue reading “Minimum Requirements for Search Warrants”