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R. v. Sutherland, 2000 CanLII  17034 (ON CA)


[15]         A search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected. Further, the Criminal Code imposes special requirements where a search by night is contemplated. The warrant in this case authorized a search of the dwelling house between 2:00 and 5:00 a.m.

[16]         Section 488 of the Code now reads:

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 at night.


[18]         In my view, a failure to satisfy s.488(b) is a strong indicator, if not conclusive, of an offence of s.8 of the Charter. Nor do I agree that in this case an inference can be drawn from the information, as amended or in its original form, that there were reasonable grounds to believe the opportunity to seize stolen goods might have been lost if it had not been pursued before the next morning. This ring had been in the possession of the appellant for two months. Apparently, he had twice exhibited it for close enough inspection that an engraved name could be read. The obvious and only reasonable approach was for the officer to obtain the warrant and greet the appellant at his apartment door in the morning.


[25]         The provision for a night search of a home is meant to be invoked in exceptional circumstances and not, as here, to be used casually to justify invasion of a home whose occupants can be expected to be in bed asleep – all to find watches worth $3,000 and some commemorative rings which would in all likelihood have remained there until morning.


3]         To some extent, whenever a guilty person evades conviction because of a Charter breach the administration of justice suffers. However, a balance must be found when Charter breaches are exposed in court to assure that innocent persons do not suffer by repetition of the breach. When the conduct of the police, who form an integral part of the administration of justice, falls below the expected standard, the protection of the public by the justice system suffers. The mere presence of police officers at one’s home in the middle of the night, for whatever reason, is a frightening event. Parliament has recognized that only in exceptional circumstances can the police exercise this unusually intrusive procedure. Those circumstances did not exist in this case.

[34]         In my view, on the totality of circumstances set out in these reasons, the evidence should be excluded.

Jim O'Neil, LL.B.

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