Section 489(2): No Warrant? No Problem!

Featured in Robson Crim

Apr 2, 2020

5 min read

Updated: 2 days ago

Author: L Bendkowsky

Section 489(2) in the Criminal Code permits seizures of material without a warrant on two conditions: firstly, that the officer be lawfully present; and secondly, that the officer believes on reasonable grounds that the seized property has been used in or for the commission of an offense.[1] Intuitively this power must be considered specifically with an eye to section 8 of the Charter of Rights and Freedoms against unlawful searches and seizures. The requirement of “lawful presence” may be a mechanism for circumventing a breach of section 8 – that is, the individual has consented to the presence of the officer thereby making the officers presence lawful and this consent is “voluntary and informed”.[2]

Whether this threshold is adequately met in a given circumstance will be up to the trier of fact to determine. In instances of an officer requesting permission to examine or search personal property there may be hesitance or caution for an individual to decline the request due to fear of punitive measures or recourse from the officer. This is not to say that officers will necessarily react in this manner, but rather that individuals may not refuse due to fear of further suspicion or charges being brought.

An officer requesting to look around or search may be taken to put the other individual in the interaction on notice that there is something amiss and fearful of what the officer may, or may not, know, or suspect. From this concern, the individual may comply and acquiesce thinking this silent and passive acceptance is the best course of action rather than denying permission to search. For example, the implied license doctrine permits for officers to approach and knock on a door for the purposes of “convenient communication” if the officers are on legitimate business, though this cannot be used for the purposes of conducting a search.[3]

However, permitting officers into private residence to facilitate this communication may prove grounds to satisfy the lawful presence requirement. Giving express permission by inviting the officers inside may be sufficient to meet the requirements of their presence being lawful. Another distinction for 489(2) seizures vis-à-vis other warranted searches is there appears to be a laxer standard for the requirement to invoke the power. In other instances of seizures performed with a warrant, the officers must have the warrant nearby, readily accessible, or presentable to the accused in question.

Whereas with a seizure performed under 489(2) there is jurisprudence that states that failure to state, make mention, or invoke the powers of 489(2) would not be fatal to finding the seizure unlawful presuming the other necessary requirements are met.[5] Additionally, seizures made under mistaken authority do not necessarily make the seizure unlawful if there is other authority that permits the seizure .[6] This lack of a requirement to mention the provision but still utilize the power further bolsters the lack of safeguards on 489(2) seizures. In comparison, lack of an adequately accessible warrant may be fatal in other seizures where the task of acquiring a warrant has already been done, yet failure to mention the unwarranted seizure power does not prove necessarily fatal. There is an incongruency in that the more onerous requirement of getting a warrant is held to a higher standard than a seizure done without a warrant.

This potentially makes for a convenience of relying on 489(2) seizures where one does not have to get a warrant and must meet the two required grounds; rather than going through the process of obtaining a warrant and carrying this warrant out accordingly with more stringent rules and application. In interpreting and finding the necessary threshold for the reasonable grounds for belief the Manitoba Court of Appeals has stated that this is “not high or particularly onerous… on a spectrum of proof, [the standard] is higher than a reasonable suspicion that an offence has been committed, but lower than proof on a balance of probabilities”.[7]

For comparison, to secure a conviction in criminal proceedings the prosecution must prove the case beyond a reasonable doubt, and civil proceedings require proof on the balance of probabilities, a requirement that is lower than a reasonable doubt. The reasonable grounds requirement falls below the standard of balance of probabilities, again making this an easier mechanism to utilize and then prove/justify if the issue presents itself in proceedings.

The circumstances that must be proven in this instance show great deference to the judgment of officers and their judgment about whether the evidence seized was used for the purposes of or as an accessory to a crime. For example, a wife may say to an officer that “I think my husband has used the computer to download a movie before” and this statement itself may be enough for reasonable grounds of seizure if the other requirement of lawful presence is met given the low standard required for the reasonable grounds. The inference for the subjective belief being above a suspicion but below the balance of probabilities should make the standard easy to discharge and meet.

Much like the restrictions placed upon acquiring a warrant, seizures under 489(2) are easier to meet and require less work. A reason that this provision’s power is given greater levity is that the power is used for the purposes of seizures and not for searches. From the above example, the officer may take the computer but cannot immediately start searching for the files if the seizure was performed under 489(2). Only upon getting a warrant may a search be carried out. Nevertheless, the impact of a potential seizure likely goes beyond a mere inconvenience for most individuals. Particularly in the example of a computer or cell phone being seized where the accused may consistently utilize the device for non-criminal purposes.

Moreover, these types of devices are more likely to be seized but inaccessible to searches given the security measures of lock screens, passwords, or other mechanisms being in place to bar immediate access. This extra layer of security brings about the requirement of getting a warrant which may further extend the owner’s time without the device. For many less than an insignificant amount of time without their computer or cell phone may have very detrimental effects in other aspects of their lives, particularly if they rely on the device to conduct business or work.Seizures without warrant are not particularly common or abused by police forces, nevertheless awareness should be raised about the seemingly low requirements that are to be met for these seizures to be found lawful.