Firearm & Weapons - Search & Seizure

Question 1

Warrantless Search Authorities?

Answer 1

Common Law:

Search Incident to arrest - uncover weapons/preserve evidence (R. v Golden)

Investigative detention - pat down search
(R v. MacDonald)

Criminal Code:

Exigent Circumstances

s. 487.11
s. 529.3
s. 117.02

Provincial Statutes:
HTA, LLA & Cannabis Control Act

Question 2

Investigative Detention

Answer 2

(1) reasonable suspicion
(2) Inv. detention/person detained
(3) RG to BELIEVE officer or public safety at risk
(4) pat down for weapons only

Question 3

Search Incident to Arrest

Answer 3

(1) Person lawfully arrested
(2) Search evidence of offence, weapons, items of escape
(3) person/immediate area/vehicle

Question 4

Exigent Circumstances dwelling house s. 529.3(1) CC - Person may enter a dwelling house without warrant to arrest/apprehend when?

Answer 4

RG exist that:

(1) person is/are present in the dwelling house
(2) warrant is not practicable due to exigent circumstances

Question 5

Exigent Circumstances Dwelling House s. 529.3(2) CC

Answer 5

Exigent circumstances include:

(1) PO has RG to SUSPECT entry necessary to prevent imminent bodily harm or death to another person
(2) RG to BELIEVE evidence related to an indictable offence is in the dwelling and entry is necessary to prevent imminent loss/destruction of evidence
(3) Once the dwelling and occupants are in custody, do not continue search

Question 6

Search/Seizure w/o warrant - Person, Vehicle & Place (No dwelling) s. 117.02(1)

Answer 6

(1) RG that a weapon, imitation firearm, prohibited device, any ammo or explosive used in commission of offence
(2) offence is being committed or has been committed
(3) evidence is likely to be found on a person, in a vehicle, or in any place other than a dwelling

by reason of exigent circumstances

Question 7

S. 88(1) CC - Carries or Possesses Weapon - every person commits an offence when?

Answer 7

(1) carries/possesses a weapon, an imitation of a weapon, a prohibited device or any ammo or prohibited ammo
(2) for a dangerous purpose to the public peace
(3) or for purpose of committing an offence

Question 8

Seizure of “Plain View”

Answer 8

(1) While executing any warrant or
(2) otherwise lawfully positioned

If you see it - you can seize it

Question 9

What are the (3) Evidentiary Searches with warrant

Answer 9

Evidence of offence:

(1) Information for search warrant s. 487
(2) warrant s. 11 CDSA
(3) Information for general warrant - s. 487.01

Question 10

Public Safety Search & Seizure (firearms) s. 117.04(1) with warrant and s. 117.04(2) without warrant

Answer 10

S. 117.04(1) - with warrant for public safety. Not looking for evidence of an offence
eg: attend house for a well being check and discover male with dementia and is a lawful gun owner (no grounds to apprehend). Not desirable for male to own guns out of public safety. Obtain warrant.

S. 117.04(2) without warrant. By reason of a possible danger & not practicable to obtain warrant. Not looking for evidence of an offence
eg: you attend a house party where there are 16 year olds. homeowner is a gun owner with restricted firearms. RG to believe that f/a may be removed by means of theft or may end up in hands of party goers. Seize firearms.

Question 11

Seizures s. 117.03 CC

Answer 11

(1) seizure - no licence, registration certificate, authorization produced by person in possession of a firearm
(2) 14 days to produce licence - property returned where produced
(3) no registration certificate required for non-restricted firearms

Question 12

Application for Disposition S. 117.05

Answer 12

(1) procedure identical whether public safety search was with or without warrant
- return to a justice forthwith
- application for disposition - items must be returned if no application made within 30 days