legally speaking - Justice Institute of British Columbia

a considerable distance away from the building
named in the warrant and with no apparent
connection to the criminal activity under
investigation. For example, on the Crown’s
theory, had there been a cabin in the woods well
away from the clearing in which the [main]
residence was located, the police would have
been entitled to approach it, examine the
exterior, and look through the windows.
This does not mean that the police cannot take
reasonable steps to protect themselves and
others during the execution of a search warrant.
I recognize, as the Crown pointed out in its
submissions, that the execution of warrants can
give rise to officer-safety concerns and that those
concerns can be heightened when the place
being searched is on a multi-structure rural or
semi-rural property. However, the interests of
law enforcement must be balanced with the
rights of members of the public.
In my view, when a warrant has been issued to
search one place or premises on a particular
property, the police, in the course of executing
that warrant, have the authority, at common law,
to inspect and enter other places or premises on
that property to the extent reasonably necessary
to protect themselves and others. However, they
cannot take such action as a matter of course, or
on the basis of generalized, non-specific,
concerns. Before acting, they must have a
reasonable basis for believing there is a
possibility that their safety, or the safety of
others, is at risk. [paras. 57-59]
This approach is similar to that taken with respect to
the authority of the police to conduct searches
incidental to investigative detentions. In those cases,
the police have a common-law power to detain a
person for investigation and, in certain
circumstances, the police can conduct a limited
protective search of a detainee. Similarly, the
approach taken with respect to unannounced (i.e.,
no knock) forced entry into a dwelling-house in the
execution of a search warrant was also instructive. In
such cases, a no-knock entry can be made in
response to concerns for police and occupant safety
based on an individualized assessment of the
circumstances. The Court continued:
Volume 11 Issue 1 - January/February 2011
PAGE 40
There can be no question that police officers are
acting in the exercise of a lawful duty when they
execute a search warrant. The critical issue is
whether conducting what I would call “security
checks” of places or premises on the same
property as the place or premises covered by a
warrant is a justifiable use of a power associated
with that duty. In my view it is. ... “[P]olice
officers are entitled to take reasonable steps to
minimize the risks they face in the performance
of their duties”. Accordingly, if police officers
have reasonable grounds to be concerned that
there is a possibility that someone who poses an
immediate risk to their safety or the safety of
others is in such other place or premises, then
they can take reasonable steps to minimize that
risk. [para. 65]
Exigent Circumstances
Under s. 11(7) of the CDSA there is an “exigent
circumstances” exception to obtaining a warrant.
Exigent circumstances can include situations where
there is an imminent danger of the loss, removal,
destruction or disappearance of evidence if the
search or seizure is delayed or where immediate
action is required for the safety of the police:
Clearly, when police officers have the grounds
necessary to obtain a warrant and a reasonable
basis to believe that the evidence being sought
will be lost or destroyed before a warrant can be
obtained, they can act without a warrant. ...
Similarly, ... there will be situations where safety
concerns will satisfy an exigent circumstances
exception to a warrant requirement. [references
omitted, paras. 70-71]
But not all officer safety concerns will exempt the
need for a search warrant. “While safety concerns
can trigger a statutory exigent circumstances
exception to a warrant requirement, it does not
follow that such concerns will always satisfy those
exceptions. Those concerns must make obtaining a
warrant impracticable,” said Justice Frankel. “I do
not accept that officer-safety concerns that arise only
upon, and as a result of, the commencement of a
search are sufficient to justify that search being
conducted without a warrant.”