Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code

The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code, s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code.   

Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”. 

R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders, 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck, 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell, [2007] O.J. No. 2348, at para. 47 (Ont. S.C.).



Warrants Authorized under the Controlled Drugs and Substances Act

Unlike warrants issued under the Criminal Code, there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night time execution is justified under s. 488 of the Criminal Code. 

That does not mean that the time at which a warrant is executed may not factor into the reasonableness of the manner in which the warrant is executed.  It means only that when considering the reasonableness of the manner in which a warrant issued under s. 11 of the CDSA was executed, the Criminal Code distinction between warrants executed before and after 9:00 p.m. has no application.

R. v. Shivrattan, at para 61.

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