Telewarrants (Until 2022)
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- < Warrant Searches
General Principles
A telewarrant is a warrant that was applied for by telephone or other means of telecommunication to a designated justice. Unlike regular applications for judicial authorizations, this form of application does not require that the applicant peace officer appear in person before a justice of the peace to obtain the warrant.
Under s. 487.1(1), a peace officer may only apply for a telewarrant where he believes an indictable offence has been committed and it would be “impractical to appear personally”. The section states:
Telewarrants
487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 [impaired/over 80 driving blood sample warrant] or 487 [search warrant], the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.
...[(2) to (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
[annotations added]
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The applicant must be a "peace officer" as defined in s. 2 of the Code.[1]
Impression Warrant
A telewarrant is also available for an impression warrant:
487.092
...
Telewarrant
(4) Where a peace officer believes that it would be impracticable to appear personally before a justice to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.
1997, c. 18, s. 45; 1998, c. 37, s. 23.
– CCC
- ↑
See also Criminal Code and Related Definitions
Timberwolf Log Trading Ltd. v British Columbia, 2011 BCSC 142 (CanLII) - applicant not a peace officer
Contents of Information
487.1.
...
Contents of information
(4) An information submitted by telephone or other means of telecommunication shall include
- (a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;
- (b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure;
- (c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and
- (d) a statement as to any prior application for a warrant under this section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.
...
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
– CCC
The information sworn to must include:[1]
- description of the circumstances that make it impractical for the informant to appear personally to obtain the warrant;
- a description of the indictable offence that is alleged
- a description of the place to be searched;
- a description of the item(s) to be seized;
- the grounds for believing t hat the item(s) will be located within the place;
- details on any prior applications with respect to the same matter.
Issuing Telewarrant
487.1
...
Issuing warrant
(5) A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means of telecommunication
- (a) is in respect of an indictable offence and conforms to the requirements of subsection (4),
- (b) discloses reasonable grounds for dispensing with an information presented personally and in writing, and
- (c) discloses reasonable grounds, in accordance with subsection 256(1) [ impaired/over 80 blood sample warrant ]or paragraph 487(1)(a), (b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence,
may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued by a justice before whom the peace officer appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may require that the warrant be executed within such time period as the justice may order.
...
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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Impracticable to Attend in Person
The applicant must state the reasons it is "impracticable" to make an application in person before either a judge or justice of the peace. This includes what reasonable efforts were made to make personal appearance possible.[1]
The term "practicable" in this context "means something less than impossible and imports a large measure of practicality, what may be termed common sense."[2]
Burden
The onus is upon the defence to establish "practicality".[3]
Verification of Unavailability
It is expected that the applicant will verify that a local JP is not available.[4] It has been suggested that where there is a "possibility" that a judge may be available, then the applicant should make an inquiry.[5]
An officer can rely on past experience to conclude that a justice of the peace would not be available at the time desired.[6]
The absence of any efforts made by the officer to confirm the unavailability of the JP can invalidate the warrant.[7]
Lack of Reasons
Where the applicant does not state the reasons or efforts made, it may invalidate the warrant.[8] This will be seen, for example, where the police are found to be hiding the real reason of timeliness in seeking a nighttime warrant.[9]
- ↑
e.g. R v Adansi, 2008 ONCJ 144 (CanLII) at para 74
R v Breland, 2000 ABPC 110 (CanLII)
R v Brick, 1989 CanLII 3424 (AB QB)
R v Sattelberger, [1995] 105 Man. R. (2d) 252 (Q.B.)(*no CanLII links) at para 36
R v Le, 2009 BCCA 14 (CanLII) - failed to give reason for not checking on avail. of JP
- ↑
R v Erickson, 2003 BCCA 693 (CanLII) at para 33
- ↑ R v Nguyen, 2009 BCCA 89 (CanLII)
- ↑ R v Mui Thi Nguyen, 2006 BCPC 398 (CanLII) at para 97
- ↑ R v Koprowski, 2005 BCPC 657 (CanLII) at para 13
- ↑
R v Martins, 2018 ONCA 315 (CanLII) at para 3
- ↑ R v Ling, 2009 BCCA 70 (CanLII)
- ↑
e.g. See R v Ling, 2009 BCCA 70 (CanLII)
Adansi -- warrant invalidated
Ling 2009 BCCA 70 (CanLII) at paras 26, 27
Le at para 26
- ↑ e.g. Le at para 26
Accepted Reasons
Acceptable reasons for applying for a telewarrant:
- distance to reach the Judge or Justice of the Peace;[1]
- application to be made outside court hours;[2]
- short time limit to obtain the warrant. (e.g. when 4 hour time limit on blood sample)[3]
- ↑
R v Martens, 2004 BCSC 1450 (CanLII) at para 221
R v Phillips, 2004 BCSC 1797 (CanLII) at para 24
- ↑
R v Bui and Trac, 2004 BCPC 277 (CanLII) at para 20
Martens at para 221
R v Murphy, 2010 ONSC 595 (CanLII) at para 23-39
- ↑
R v Pedersen, 2004 BCCA 64 (CanLII) at para 23
Procedure
Transmission of Information
487.1
...
Information submitted by telephone
(2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.
Information submitted by other means of telecommunication
(2.1) The justice who receives an information submitted by a means of telecommunication that produces a writing shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the information certified by the justice as to time and date of receipt.
...
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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Sworn Oath
487.1
...
Administration of oath
(3) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.
Alternative to oath
(3.1) A peace officer who uses a means of telecommunication referred to in subsection (2.1) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to his or her knowledge and belief and such a statement is deemed to be a statement made under oath.
...[(4) to (12)]...
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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Verbal Issuance of Telewarrant
487.1
...
Formalities respecting warrant and facsimiles
(6) Where a justice issues a warrant by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing,
- (a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance;
- (b) the peace officer, on the direction of the justice, shall complete, in duplicate, a facsimile of the warrant in Form 5.1, noting on its face the name of the issuing justice and the time, date and place of issuance; and
- (c) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.
...
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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Written Issuance of Telewarrant
487.1
...
Issuance of warrant where telecommunication produces writing
(6.1) Where a justice issues a warrant by a means of telecommunication that produces a writing,
- (a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance;
- (b) the justice shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (6)(b);
- (c) the peace officer shall procure another facsimile of the warrant; and
- (d) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.
...
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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Execution of Search
Posting of Warrant
487.1
...
Providing facsimile
(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, before entering the place or premises to be searched or as soon as practicable thereafter, give a facsimile of the warrant to any person present and ostensibly in control of the place or premises.
Affixing facsimile
(8) A peace officer who, in any unoccupied place or premises, executes a warrant issued by telephone or other means of telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, on entering the place or premises or as soon as practicable thereafter, cause a facsimile of the warrant to be suitably affixed in a prominent place within the place or premises.
...
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Report to Clerk on Search
Once the search is complete, the authorized peace officer must file a report with the "clerk of the court" for the justice who authorized the warrant.
487.1
...
Report of peace officer
(9) A peace officer to whom a warrant is issued by telephone or other means of telecommunication shall file a written report with the clerk of the court for the territorial division in which the warrant was intended for execution as soon as practicable but within a period not exceeding seven days after the warrant has been executed, which report shall include
- (a) a statement of the time and date the warrant was executed or, if the warrant was not executed, a statement of the reasons why it was not executed;
- (b) a statement of the things, if any, that were seized pursuant to the warrant and the location where they are being held; and
- (c) a statement of the things, if any, that were seized in addition to the things mentioned in the warrant and the location where they are being held, together with a statement of the peace officer’s grounds for believing that those additional things had been obtained by, or used in, the commission of an offence.
...[(10) to (12)]...
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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Report to Justice
487.1
...
Bringing before justice
(10) The clerk of the court shall, as soon as practicable, cause the report, together with the information and the warrant to which it pertains, to be brought before a justice to be dealt with, in respect of the things seized referred to in the report, in the same manner as if the things were seized pursuant to a warrant issued, on an information presented personally by a peace officer, by that justice or another justice for the same territorial division.
...
– CCC
Evidence
487.1
...
Proof of authorization
(11) In any proceeding in which it is material for a court to be satisfied that a search or seizure was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the justice and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the search or seizure was not authorized by a warrant issued by telephone or other means of telecommunication.
Duplicates and facsimiles acceptable
(12) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purposes of subsection (11).
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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