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Bill C-406

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1st Session, 36th Parliament,
46-47 Elizabeth II, 1997-98

The House of Commons of Canada

BILL C-406

An Act to amend the Criminal Code (search and seizure without warrant)

R.S., c. C-46; R.S., cc. 2, 11, 27, 31, 47, 51, 52 (1st Supp.), cc. 1, 24, 27, 35 (2nd Supp.), cc. 10, 19, 30, 34 (3rd Supp.), cc. 1, 23, 29, 30, 31, 32, 40, 42, 50 (4th Supp.); 1989, c. 2; 1990, cc. 15, 16, 17, 44; 1991, cc. 1, 4, 28, 40, 43; 1992, cc. 1, 11, 20, 21, 22, 27, 38, 41, 47, 51; 1993, cc. 7, 25, 28, 34, 37, 40, 45, 46; 1994, cc. 12, 13, 38, 44; 1995, cc. 5, 19, 22, 27, 29, 32, 39, 42; 1996, cc. 7, 8, 16, 19, 31, 34; 1997, cc. 9, 16, 17, 18, 23, 30

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. Subsection 117.04(2) of the Criminal Code, as enacted by section 139 of the Firearms Act, chapter 39 of the Statutes of Canada, 1995, is repealed.

2. Subsections 117.04(3) and (4) of the Act, as enacted by section 139 of the Firearms Act, chapter 39 of the Statutes of Canada, 1995, are replaced by the following:

Return to justice

(3) A peace officer who executes a warrant referred to in subsection (1) shall forthwith make a return to the justice who issued the warrant showing

    (a) the date of execution of the warrant;

    (b) a description of the things or documents, if any, seized;

    (c) the extent of the search; and

    (d) a report on any damage done to the premises or any property on the premises during the execution of the warrant.

Authoriza-
tions, etc., revoked

(4) Where a peace officer who seizes any thing under subsection (1) is unable at the time of the seizure to seize the authorization or licence under which the person from whom the thing was seized may possess the thing and, in the case of a seized firearm, a registration certificate for the firearm, every authorization, licence and registration certificate held by the person is, as at the time of the seizure, revoked.

3. Subsection 117.05(1) of the Act, as enacted by section 139 of the Firearms Act, chapter 39 of the Statutes of Canada, 1995, is replaced by the following:

Application for disposition

117.05 (1) Where any thing or document has been seized under subsection 117.04(1) , the justice who issued the warrant authorizing the seizure shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.

4. The Act is amended by adding the following after section 117.05 as enacted by section 139 of the Firearms Act, chapter 39 of the Statutes of Canada, 1995 :

Application for restitution

117.051 (1) A person whose property has been the subject of entry and search under the authority of a warrant issued pursuant to subsection 117.04(1) and whose property has been lost or damaged as a result of the entry and search may apply to the justice who issued the warrant for restitution in respect of the loss or damage.

Hearing

(2) A justice who receives an application under subsection (1) shall fix a date for a hearing on the matter and notify the applicant and the officer who applied for the warrant and such other persons as the justice sees fit and may, after the hearing, order restitution to the applicant, subject to subsections (3) and (4).

Persons not entitled to restitution

(3) No person is entitled to restitution for loss or damage resulting from an entry or search if

    (a) the person is convicted of an offence on the basis of evidence discovered during the search and in the opinion of the justice the loss or damage was not excessive in light of the nature of the offence;

    (b) the loss was of a thing that the applicant did not have the right to possess; or

    (c) the loss or damage was a result of the applicant or other person on the premises

      (i) refusing entry to a peace officer with a warrant immediately after the peace officer announced the demand for entry and offered identification,

      (ii) refusing to immediately provide access to any part of the premises reason ably requested by a peace officer,

      (iii) refusing to immediately produce any thing related to the purpose of the search reasonably requested by the peace officer if that thing was actually on the premises at the time, or

      (iv) refusing to immediately provide a peace officer with information the peace officer requested in connection with the entry and search.

Exception

(4) Nothing in subsection (3) limits restitution for loss or damage that was not reasonably necessary in all the circumstances of the entry and search

    (a) recognizing that speed in a search may be made necessary by the circumstances and that loss or damage may be a reasonable result of speed; and

    (b) taking into account the behaviour of the applicant and other persons on the premises during the entry and search.

5. The portion of subsection 117.06(1) of the Act before paragraph (a), as enacted by section 139 of the Firearms Act, chapter 39 of the Statutes of Canada, 1995, is replaced by the following:

Where no finding or application

117.06 (1) Any thing or document seized pursuant to subsection 117.04(1) shall be returned to the person from whom it was seized if

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