Seizure of Evidence (Without-Warrent)

Provincial Offences Act, R.S.O. 1990, c. P.33

158.2 (1) Subsection (2) applies when,

(a) a person has, under a warrant issued under this or any other Act or otherwise in the performance of his or her duties under an Act, seized any thing,

(i) upon or in respect of which an offence has been or is suspected to have been committed, or

(ii) that there are reasonable grounds to believe will afford evidence as to the commission of an offence; and

(b) no procedure for dealing with the thing is otherwise provided by law. 2006, c. 19, Sched. B, s. 15 (2).

(2) The person shall, as soon as is practicable, take the following steps:

1. The person shall determine whether the continued detention of the thing is required for the purposes of an investigation or proceeding.

2. If satisfied that continued detention is not required as mentioned in paragraph 1, the person shall,

i. return the thing, on being given a receipt for it, to the person lawfully entitled to its possession, and

ii. report to a justice about the seizure and return of the thing.

3. If paragraph 2 does not apply, the person shall,

i. bring the thing before a justice, or

ii. report to a justice about the seizure and detention of the thing. 2006, c. 19, Sched. B, s. 15 (2); 2017, c. 34, Sched. 35, s. 24.

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159 (1) When, under paragraph 3 of subsection 158.2 (2), a thing that has been seized is brought before a justice or a report in respect of it is made to a justice, he or she shall, by order,

(a) detain the thing or direct it to be detained in the care of a person named in the order; or

(b) direct it to be returned. 2002, c. 18, Sched. A, s. 15 (5); 2006, c. 19, Sched. B, s. 15 (3).

(1.0.1) A direction to return seized items does not take effect for 30 days and does not take effect during any application made or appeal taken in respect of the thing. 2009, c. 33, Sched. 4, s. 1 (61).

(1.1) The justice may, in the order,

(a) authorize the examination, testing, inspection or reproduction of the thing seized, on the conditions that are reasonably necessary and are directed in the order; and

(b) make any other provision that, in his or her opinion, is necessary for the preservation of the thing. 2002, c. 18, Sched. A, s. 15 (5).

(2) Nothing shall be detained under an order made under subsection (1) for a period of more than three months after the time of seizure unless, before the expiration of that period,

(a) upon motion, a justice is satisfied that having regard to the nature of the investigation, its further detention for a specified period is warranted and he or she so orders; or

(b) a proceeding is instituted in which the thing detained may be required. R.S.O. 1990, c. P.33, s. 159 (2).

(3) Upon the motion of the defendant, prosecutor or person having an interest in a thing detained under subsection (1), a justice may make an order for the examination, testing, inspection or reproduction of any thing detained upon such conditions as are reasonably necessary and directed in the order. R.S.O. 1990, c. P.33, s. 159 (3).

(4) Upon the motion of a person having an interest in a thing detained under subsection (1), and upon notice to the defendant, the person from whom the thing was seized, the person to whom the search warrant was issued and any other person who has an apparent interest in the thing detained, a justice may make an order for the release of any thing detained to the person from whom the thing was seized where it appears that the thing detained is no longer necessary for the purpose of an investigation or proceeding. R.S.O. 1990, c. P.33, s. 159 (4).

(5) Where an order or refusal to make an order under subsection (3) or (4) is made by a justice of the peace, an appeal lies therefrom in the same manner as an appeal from a conviction in a proceeding commenced by means of a certificate. R.S.O. 1990, c. P.33, s. 159 (5).

Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13

44 (1) An animal welfare inspector who is lawfully in any place may, without a warrant, seize any animal or thing that he or she has reasonable grounds to believe,

(a) has been obtained by the commission of an offence under this Act;

(b) has been used in the commission of an offence under this Act;

(c) will afford evidence of the commission of an offence under this Act; or

(d) is intermixed with a thing referred to in clause (a), (b) or (c).

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(6) An animal welfare inspector who has seized an animal or thing under this section shall comply with the requirements of section 158.2 of the Provincial Offences Act.

(7) Any animal or thing seized and not forfeited under this section shall be returned to the person from whom it was seized if,

(a) a charge is not laid at the conclusion of the investigation; or

(b) a charge is laid but, when the charge is finally disposed of, the defendant is acquitted or the charge is dismissed or withdrawn.

Canadian Charter of Rights and Freedoms

8 Everyone has the right to be secure against unreasonable search or seizure.

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24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

R. v. Ringler, 2004 ONCJ 104 (CanLII)

Section 8 provides that everyone has the right to be secure against unreasonable search and seizure. Although the onus on a Charter application is prima facie on the applicant, where, as here, a warrantless entry and seizures were made in a private residence, there is a presumption of unreasonableness and Section 8 breach, which can be rebutted by the Crown on a balance of probabilities if it shown that the entry and seizures were authorized by law, a reasonable law, and done in a reasonable manner. Feeney 1997 CanLII 342 (SCC), 115 CCC (3d) 129, SCC provides, inter alia, that the police cannot make warrantless arrests in private dwellings unless exceptional circumstances exist, and that an individual’s privacy interest in one’s dwelling house generally outweighs the interests of the police, and thus warrantless arrests in dwelling houses are prohibited, subject to very limited exceptions. These exceptions would include hot pursuit, or entry in circumstances reflected in Golub 111 CCC (3d) 193, where police have safety concerns including the possible existence of persons in the premises, or Godoy 1999 CanLII 709 (SCC), 1999 1 SCR 311 where a situation presents concerns as to the life and safety of an occupant in a dwelling.

In the case at bar, where there has been a warrantless entry and a prima facie Section 8 breach, the principles and directions in Waterfield 1963 3 AER 659, and Dedman 1985 CanLII 41 (SCC), 1985 2 SCR 2, must be applied. That engages the inquiry as to determining whether the conduct falls within the general scope of any duty imposed by statute or common law, and if so, did there exist an unjustifiable use of those powers associated with the duty. As I have already stated, Section 42 of the Police Services Act sets out certain duties of the police including preserving the peace, prevention of crime, and protection of life and property.

The OSPCAA spells out certain rules concerning entries, and Section 12 permits entry into a dwelling place where a Justice of the Peace has issued a warrant authorizing entry, and Section 12 (2) provides for entry into buildings other than a dwelling place without warrant where an animal is in immediate distress. Section 12 (5) provides that if an inspector finds an animal in distress in any building, the inspector is authorized to supply the animal with food, care, or treatment. Section 13 (1) provides that where reasonable grounds exist to an inspector that an animal is in distress, and the owner is present, that the inspector may order the said owner to take the necessary action to relieve the animal of its distress, or have the animal treated by a veterinarian at the owner’s expense. Section 14 (1) provides for an inspector removing an animal from a building in order to provide it with food, care or treatment to relieve its distress in circumstances where, inter alia, a veterinarian has examined and advises that removal is required, or the inspector reasonably believes that the animal is in distress and the owner cannot be found promptly.

Section 1 defines distress as meaning the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect.

Section 3 of the Act sets out the objects of the Ontario Society for the Prevention of Cruelty to Animals, to facilitate and provide for the prevention of cruelty to animals and their protection and relief thereunder. Section 11 (1) provides that for purposes of enforcement of that Act, or any other act or law in force in Ontario pertaining to the welfare of or the prevention of cruelty to animals, every inspector and agent of the Society may exercise any of the powers of a police officer.