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SEARCH OF HOME-NIGHT-CDSA

R. v. Duncan, 2002 MBQB 240 (CanLII)


[3]              Section 11 of the C.D.S.A. Provides:


11.     (1)  A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a)   a controlled substance or precursor in respect of which this Act has been contravened,

. . . . .

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.


...


[14]         I conclude from these authorities that there is nothing contained in s. 11 of the C.D.S.A. requiring the justice to spell out in the search warrant the hours in which the warrant may be executed.  As long as there is evidence on which a determination can be made, the warrant will comply with the section whether it authorizes execution during the daytime, the nighttime or at any time.

. . . . .


[16]         Applying these authorities, I conclude that s. 11 of the C.D.S.A. meets the minimum requirements of s. 8 of the Charter, in that it establishes a system of prior authorization with an objective standard or criteria for the grant of a warrant and that the evidence must be assessed by a neutral and independent arbiter.


[17]         Did the inquiry conducted by the justice relating to the appropriate time for execution of the warrant satisfy the minimum requirements of s. 8 of the Charter?   Very few authorities touch on this point.

[18]         In R. v. Peddle reflex, (1997), 157 Nfld. and P.E.I.R. 54 at 56, Wells J. stated:

[5}     In the circumstances, was it reasonable to execute the search warrant at night?  In my view it was reasonable.  The role of the police is to investigate crimes.  Certain crimes have a degree of investigative urgency.  Others have not the same degree of urgency, but the crime alleged here, which was being in possession of a considerable amount of cocaine for sale in a relatively small community, is a serious one by any standard.

[6]      When there are reasonable and probable grounds for acting upon the information received, the peace officer has a duty to pursue an investigation at the earliest possible time.  The allegation of possession of cocaine for the purpose of trafficking, should not presuppose a "nine to five" police investigation.  If there is reason to believe that such criminal activity is being conducted, then it is reasonable also to believe that sales of the drug may take place at any time of the day or night.  Thus that the peace officer should act quickly and take such steps as are available to prevent the further commission of crime and it follows that there is a duty to investigate with all reasonable haste.  The possible sale of cocaine is something which warrants immediate action.  Therefore it was reasonable for the officer to seek to proceed to search forthwith, no matter what the time of day or night.  The warrant authorized a night search, which I find was in the circumstances reasonable and necessary.

In R. v. Saunders [2002] N.J. No. 159 (Nfld. and Lab. P.C.), Provincial Court Judge Gorman stated:

. . . However, this wording does not mean that the justice must authorize a night-time search simply because the police have requested it.  The section indicates that a justice "may" do so.  Similarly, section 199 of the Criminal Code allows a justice to authorize the police to conduct a search "by day or night."  These provisions do not have the effect of removing a justice's discretion as regards the timing of the execution of a search warrant he or she has issued.  They simply provide a justice with the specific authority to allow the police to conduct a section 199 or section 11 search at night, if he or she is satisfied that there is a valid reason to do so.  Section 11 of the Controlled Drugs and Substances Act cannot be interpreted in a fashion which prohibits judicial consideration and authorization of the time in which a search is to take place.  To interpret either section 11 or section 199 of the Criminal Code in such a manner would be contrary to the minimum constitutional standards applicable to all search warrants by removing judicial authorization in relation to an important component of search warrants (see: Hunter v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145).


[12]   The reference to "at any time" in section 11 of the Controlled Drugs and Substances Act allows the justice to set a specific time, including an extended period, in which the search is authorized to be conducted.  


If an extended time period for a search is requested, the justice must be satisfied that such an extended time should be granted.  


The words "at anytime" do not require that a justice issue a search warrant without consideration of whether or not the intended time of the search is warranted.  Those words do not allow a justice to issue a search warrant allowing the police to execute a search warrant at "anytime", i.e.; when ever the police deem it appropriate to do so.  Some time period must be specified.  


The same principle applies when the police request the authority to execute a search warrant at night.  Though the information to obtain does not have to comply with section 488(b) of the Criminal Code, there must at the very least be something in the information to obtain from which the justice can draw an inference that the request to search at night has a reasonable basis.  There are good reasons for limiting searches at night to cases where it is actually necessary that they be so conducted.

[19]         I agree with the above quotations from R. v. Peddle and R. v. Saunders.  In my view, it is incumbent upon every justice who has before him or her an application for a search warrant under s. 11 of the C.D.S.A., to give consideration, based on evidence, to the questions of whether it is appropriate to permit a warrant to be executed during the day, which is defined by the Criminal Code to mean between 6:00 a.m. and 9:00 p.m., or at night, which is defined by the Criminal Code to be between 9:00 p.m. and 6:00 a.m., or at any time, that is, during the day or night, and the hours during which the warrant should be executed.  

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For reasons stated by Wells J. in R. v. Peddle, night searches may often be issued under the C.D.S.A., but the issue must be considered by the justice in each case, based on evidence.  In the instant case, Trottier arrested Terlecki at 8:00 p.m.  The investigation by Trottier extended well into the evening.  Trottier applied for the search warrant at 11:30 p.m.  It was executed about an hour later.  The warrant in question authorized execution “at any time”.  In the context of this case, that meant as soon as possible after 11:30 p.m.  On the special facts of this case, I find that there was evidence on which a warrant can be defended on the third sub-issue of the second ground.

Jim O'Neil, LL.B.

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