Exigent Circumstances Searches under the Controlled Drugs and Substances Act


It is well-established that ordinarily a warrant is required in order to enter a residence to effect an arrest or conduct a search.

Section 529.3(2)(b) of the Criminal Code and section 11(7) of the Controlled Drugs and Substances Act (“CDSA") both provide an exception to the requirement for a warrant to enter a residence if there are exigent circumstances.

CRIMINAL CODE

POWERS TO ENTER DWELLING HOUSES TO CARRY OUT ARRESTS

529.3(2) Exigent circumstances
For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.



The definition of exigent circumstances in section 529.3(2)(b) is in its effect a codification of the common law, which held that exigent circumstances exist where there is imminent danger of the disappearance or destruction of evidence if the search or seizure should be delayed in order to obtain a warrant:

R. v. Duong, 2002 BCCA 43 (CanLII), 162 C.C.C. (3d) 242, at paras. 22-23; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at 241-42, 24 C.R. (4th) 1 at 19-20, 84 C.C.C. (3d) 173 at 188-89, R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at 53, 115 C.C.C. (3d) 129.

Exigent circumstances are also the focus of section 11(7) of the Controlled Drugs and Substances Act, which authorizes an officer to search a place without warrant when the conditions for obtaining a search warrant exist but it would be impracticable to obtain one because of exigent circumstances.

CONTROLLED DRUGS AND SUBSTANCES ACT

Where warrant not necessary

11(7) A peace officer may exercise any of the powers described in subsection (1) [warrant authorizing search], (5) [Search of person and seizure] or (6) [Seizure of things not specified] without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.



Unlike the Criminal Code, this statute provides no definition of exigent circumstances.

Our courts have held that the phrase exigent circumstances has the same meaning in  section 11(7)  of the  CDSA as it does in the Criminal Code provisions and at common law.

Exigent circumstances under section 11(7) of the CDSA exist if

(1) the police have grounds to obtain a search warrant under section 11 of the CDSA  (the probable cause requirement) and

(2) the police believe, based on reasonable grounds, that there is imminent danger that evidence located in the premises will be destroyed or lost if the police do not enter and secure the premises without delay (the urgency requirement).

R. v. Phoummasak, 2016 ONCA 46 (CanLII), 350 C.R.R. (2d) 370, at para 12.  See also R. v. Kelsy, 2011 ONCA 605 (CanLII), 280 C.C.C. (3d) 456, at paras. 25-27; R. v. McCormack, 2000 BCCA 57 (CanLII), 143 C.C.C. (3d) 260, at paras. 17-25; R. v. Duong and Tran, 2002 BCCA 43 (CanLII), 162 C.C.C. (3d) 242, leave to appeal to SCC refused, [2002] S.C.C.A. No. 112.

Police cannot orchestrate the exigent circumstances in order to avoid the need to obtain a warrant prior to entry

If the police engage in a “planned and calculated procedure” and thereby created an artificial situation of urgency, then it is clear that the police cannot rely upon such conduct to establish a situation of urgency.

See Phoummasak and R. v. Silvera, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 85.

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