In Canada the police generally need a search warrant which is issued by a justice of the peace or a judge in order to search your property. For example, they require a search warrant to search your home and depending on the circumstances, your motor vehicle. This means they have to go to a judge or justice of the peace with an affidavit (i.e. an information to obtain) setting out that they have reasonable and probable grounds to believe that there are illegal items or contraband in your home or car. They must have proper grounds based on objective facts and evidence in order to convince a justice of the peace or a judge to issue a search warrant. For example, they could receive credible and reliable evidence from a police informant or from someone who was in the house and saw illegal items or evidence or they acquired facts and evidence which would support proper grounds to obtain a search warrant through police observation or surveillance of your home or car. Do they have reasonable and probable grounds to believe there is illegal contraband or evidence which would how a crime has taken place based on objective facts that are known to the police?
Well as they say in life, there are exceptions to every rule and a key exception that we have in Canada is called “exigent circumstances,” which basically means an emergency, urgent or exceptional type of circumstance.
Let me give a couple of examples. One is a term that they use both in the United States as well and in Canada which is called “hot pursuit.” What does hot pursuit mean? I will give you an example. The police see you committing a crime outside of your home. Let’s say you murder someone or attack your neighbour and you sprint and run into your home and the police are hot on your tail so to speak. They see you running into your home. That would be an exceptional circumstance where they would be able to go into your home and arrest you without a search warrant and then during the arrest, they would be entitled to at least search the immediate vicinity around you. They would be allowed to search both you and in your immediate vicinity as a “safety search” or “search incident to arrest.” They might not be entitled to search your entire home I might add, in that particular circumstance. This is called hot pursuit.
Now, another exceptional circumstance is where the police have reasonable grounds to believe that a crime is in the process of being committed. A clear example would be the following domestic 911 call example. Let’s say a wife who is despondent on the phone, calls 911 to report a domestic violence incident and is actually being attacked as she speaks to the 911 operator. The police then show up at the home and they hear the wife screaming and they can hear a gun being shot in the home, just as an example. Clearly, in this urgent or emergency situation, the police are legally allowed to immediately enter the home and arrest the person and do an immediate vicinity safety search or search incident to arrest when they arrest the accused.
So, these are two of the key exceptions to the general rule of thumb that search warrants are required in Canada.