Section 487 Search Warrants

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 91-134



Section 

Search Warrants

4

I. Overview .......................................................... 

II. The Structure and Test for Issuance of Section  Warrants ................ 

A. Section ()(a) ............................................ 

B. Section ()(b) ............................................ 

C. Section ()(c) ............................................ 

D. Section ()(c.) ........................................... 

E. The Test for Issuance of Warrants Issued Pursuant to Section ()(b)

to Search for and Seize Evidence ................................ 

III. What Can Be Authorized by a Section  Warrant to Search for and

Seize Evidence? .................................................... 

A. No Searches of Persons ....................................... 

B. Authorization for Videos, Photos, Measurements, Diagrams, and

Other Investigative Techniques at the Search Scene ................. 

IV. Describing the Oences ............................................. 

V. Describing the Place to Be Searched ................................... 

A. The Requirement of Precision .................................. 

B. Accuracy ................................................... 

C. Multi-Unit Dwellings .......................................... 

D. Searching the Grounds Surrounding a Dwelling-House or

Other Building ............................................... 

E. Outbuildings ................................................ 

F. Vehicles .................................................... 

G. Vehicles as Places to Be Searched Versus Things to Be Seized ........ 

VI. Things to Be Searched for and Seized .................................. 

A. Are There Grounds to Search for and Seize the Things Listed on the

Face of the Warrant? .......................................... 

B. Are Any of the Things to Be Searched for and Seized Intangible? ...... 

C. Are the Things to Be Searched for and Seized Described with Sucient

Particularity? ................................................ 

© [2021] Emond Montgomery Publications. All Rights Reserved.

Search and Seizure

I. Overview

Section 487 of the Criminal Code is the foundational search warrant provision of the

Criminal Code. Section 487 search warrants have a long and venerable history. They

are as old as the Criminal Code itself. Back in 1892, the inaugural Criminal Code con-

tained five search warrant provisions:

• ordinary search warrants issued under section 569 of the Criminal Code,

• general warrants to search for gold and silver issued under section 571,

• warrants to search for “women and girls” in houses of “ill-fame or assignation”

issued under section 574,

• warrants to search gaming-houses issued under section 575, and

• warrants to search for vagrants issued under section 576.1

The historical section 569 warrants continue to exist in modern-day section 487

with only comparatively minor revisions. As we will see, the 1892 wording and struc-

ture of section 487 can create confusion and potential errors. But, overall, the long

history of section 487 warrants means that the basic principles respecting their use

are well understood by police ocers, counsel, and courts. This chapter describes

these basic principles and identifies those areas where uncertainty still exists.

II. The Structure and Test for Issuance

of Section  Warrants

The structure and test for issuance of section 487 warrants emerge from section 487(1)

of the Criminal Code:

487(1) A justice who is satisfied by information on oath in Form 1 that there are reason-

able grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any oence against this Act or any other Act

of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will aord evidence with

respect to the commission of an oence, or will reveal the whereabouts of a person

who is believed to have committed an oence, against this Act or any other Act of

Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for

the purpose of committing any oence against the person for which a person may be

arrested without warrant, or

(c.1) any oence-related property,

1 Chapter29, 55-56 Vict, ss 569-76. Note that other search warrants also issued pursuant to

some of the other criminal statutes that were not repealed with the enactment of the 1892

Criminal Code.

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter  Section  Search Warrants 

may at any time issue a warrant authorizing a peace ocer or a public ocer who has

been appointed or designated to administer or enforce a federal or provincial law and

whose duties include the enforcement of this Act or any other Act of Parliament and

who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing

seized before, or make a report in respect thereof to, the justice or some other justice

for the same territorial division in accordance with section 489.1.

Pursuant to sections 487(1)(a) through 487(1)(c.1), section 487 warrants can issue

for four distinct purposes. It is critical for police, counsel, and courts to understand

the distinctions between these purposes and to ensure that a section 487 warrant in

any given case is obtained for the correct purpose. As described below, the test for

issuance of a section 487 warrant varies depending on its purpose. Improperly con-

flating or confusing these tests may result in the issuance of a facially invalid warrant.2

A. Section ()(a)

Section 487(1)(a) is a rarely used section that allows for the search and seizure of

oence-related property. Pursuant to section 487(1)(a), a section 487 warrant can

issue for the purpose of searching for and seizing anything “on or in respect of which”

an oence “has been or is suspected to have been committed.”

Note that section 487(1)(a) warrants purport to issue when an oence is “suspected”

to have been committed; “reasonable grounds to believe” that an oence has been

committed are not required by the language of the section. This “suspicion” language

is drawn from the 1892 Criminal Code. It is anomalous because section 487 warrants

typically require that ocers meet the higher “reasonable belief” standard, which is

the presumptive constitutional standard set by the Supreme Court of Canada.3

Because of this anomalous language, ocers who rely on section 487(1)(a) to obtain a

warrant to search for and seize oence-related property based on a reasonable suspicion

may be tempting constitutional litigation. Given that oence-related property may

also be searched for and seized pursuant to the more conventional section 487(1)(b)

and the less controversial section 487(1)(c.1) (both of which are discussed below), the

2 R v Branton, 2001 CanLII 8535, [2001] OJ No 1445 (QL) at paras 35-37 (CA); R v Nurse,

2014 ONSC 1779 at paras 27-40; R v Pahle, 2017 ONSC 6164; R v Nguyen, 2017 ONSC 1341

at paras 112-16; R v NM, 2007 CanLII 31570, [2007] OJ No 3022 (QL) (Sup CtJ) [NM cited

toCanLII]; R v Jacobson, 2004 CanLII 5912, [2004] OJ No 933 (QL) (Sup Ct J); R v Sonne,

2012 CanLII 584, [2012] OJ No 6243 (QL) (Sup Ct J) [Sonne cited to CanLII].

3 Hunter v Southam Inc, [1984] 2 SCR 145 at para 43, 1984 CanLII 33: “reasonable and probable

grounds, established upon oath, to believe that an oence has been committed and that there is

evidence to be found at the place of the search, constitutes the minimum standard, consistent

with s 8 of the Charter, for authorizing search and seizure.”

© [2021] Emond Montgomery Publications. All Rights Reserved.