In R. v. Carstairs, 2022 BCCA 69, February 23, 2022, the accused was convicted of the offence of possession of stolen goods. At his trial, the Crown led evidence obtained as a result of a nighttime search conducted at a motel room the accused was renting. He appealed from conviction, arguing that “the trial judge erred in law in finding that a warrant to search his place of residence at night had been properly authorized pursuant to s. 488 of the Criminal Code and dismissing his application for an order that the evidence obtained from the search be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms”.
The British Columbia Court of Appeal held that the search was invalid, but upheld the convictions concluding that any evidence obtained was properly admitted.
The Search at Night:
The Court of Appeal indicated that “[s]ection 488 of the Criminal Code establishes that search warrants will ordinarily be executed by day and only exceptionally by night… A nighttime search is more likely to be considered reasonable where there is a heightened concern for public safety, even where there is a relatively small risk the evidence sought will be lost or disposed of…The fact no one is expected to be present in a residence is a significant factor weighing in favour of the execution of a warrant at night… The fact the object of the search is easily transported is not generally considered to be material” (at paragraphs 33, 36, 38 and 40).
The Court of Appeal concluded that “there were insufficient grounds to authorize a nighttime search of the appellant’s residence, and the judicial justice cannot have engaged in the balancing process required to assess the reasonableness of a nighttime search. Here, as in Sutherland, urgency was not dictated by any apparent threat to the public. The nature of the offence under investigation, possession of stolen goods, did not weigh significantly in favour of an urgent search. The fact the necklace was easily moveable cannot have tipped the scale in favour of a very intrusive search… Here, as in Sutherland, the ‘obvious and only reasonable approach was for the officer to obtain the warrant and greet the appellant at his [motel] door in the morning’” (at paragraphs 41 and 46).
Section 24(2) of the Charter:
In concluding that the evidence seized should not be excluded, the Court of Appeal held that the “first two factors [in Grant] do not strongly favour the exclusion of the evidence. Balancing the seriousness of the state conduct, the seriousness of the infringement of Charter rights, and the impact upon society’s interest in adjudication, it is my opinion that the exclusion of the evidence in this case, rather than its admission, would bring the administration of justice into disrepute” (at paragraph 66).