General Warrants: Difference between revisions
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{{ | [[Fr:Mandats_généraux]] | ||
{{Currency2|January|2023}} | |||
{{LevelZero}}{{HeaderWarrants}} | {{LevelZero}}{{HeaderWarrants}} | ||
==General Principles== | ==General Principles== | ||
{{seealso|Section 487 Search Warrants}} | {{seealso|Section 487 Search Warrants}} | ||
Section 487.01(1) provides a provincial or superior court judge to grant police the general power to "use any device or investigative technique, or procedure" or otherwise do any thing described in the warrant which would constitute an unreasonable search or seizure.<ref> | Section 487.01(1) provides a provincial or superior court judge to grant police the general power to "use any device or investigative technique, or procedure" or otherwise do any thing described in the warrant which would constitute an unreasonable search or seizure.<ref> | ||
{{CanLIIRP|Li|fw1qd|2013 ONCA 81 (CanLII)|296 CCC (3d) 408}}{{perONCA|Watt JA}}{{atL|fw1qd|92}} - s.487.01 was created as a response to the findings of {{CanLIIRP|Wong|1fsq9|1990 CanLII 56 (SCC)|[1990] 3 SCR 36}}{{perSCC|La Forest J}}<br> | {{CanLIIRP|Li|fw1qd|2013 ONCA 81 (CanLII)|296 CCC (3d) 408}}{{perONCA-H|Watt JA}}{{atL|fw1qd|92}} - s.487.01 was created as a response to the findings of {{CanLIIRP|Wong|1fsq9|1990 CanLII 56 (SCC)|[1990] 3 SCR 36}}{{perSCC|La Forest J}}<br> | ||
</ref> | </ref> | ||
| Line 23: | Line 24: | ||
{{LegHistory90s|1993, c. 40}}, s. 15; | {{LegHistory90s|1993, c. 40}}, s. 15; | ||
{{LegHistory90s|1997, c. 18}}, s. 42, c. 23, s. 13; | {{LegHistory90s|1997, c. 18}}, s. 42, c. 23, s. 13; | ||
{{LegHistory10s|2019, c. 25}}, s. 192. | {{LegHistory10s|2019, c. 25}}, s. 192; | ||
{{LegHistory20s|2022, c. 17}}, s. 17. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|487.01}} | ||
|{{NoteUp|487.01|1|2|3}} | |{{NoteUp|487.01|1|2|3}} | ||
|{{terms- | |{{terms- | ||
| Line 54: | Line 56: | ||
Interpreting the meaning of s. 487.01(1)(c) should focus "on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute". | Interpreting the meaning of s. 487.01(1)(c) should focus "on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute". | ||
<ref> | <ref> | ||
{{CanLIIRP|Telus Communications|fwq20|2013 SCC 16 (CanLII)|[2013] 2 SCR 3}}{{perSCC|Abella J}}{{atL|fwq20|17}}<br> | {{CanLIIRP|Telus Communications|fwq20|2013 SCC 16 (CanLII)|[2013] 2 SCR 3}}{{perSCC-H|Abella J}}{{atL|fwq20|17}}<br> | ||
</ref> | </ref> | ||
The provision should be broad in meaning to prevent presumptive use of these warrants. | The provision should be broad in meaning to prevent presumptive use of these warrants. | ||
| Line 73: | Line 75: | ||
</ref> | </ref> | ||
A general | A general warrant can authorize multiple "covert entries and searches on private property."<ref> | ||
{{ibid1|Ha}}</ref> | {{ibid1|Ha}}</ref> | ||
| Line 82: | Line 84: | ||
{{ibid1|Knight}}</ref> | {{ibid1|Knight}}</ref> | ||
Where a Part VI wiretap warrant is available there can be no general warrant.<ref> | Where a Part VI wiretap warrant is available, there can be no general warrant.<ref> | ||
{{ibid1|Telus}}</ref> | {{ibid1|Telus}}</ref> | ||
| Line 101: | Line 103: | ||
{{LegHistory90s|1993, c. 40}}, s. 15; | {{LegHistory90s|1993, c. 40}}, s. 15; | ||
{{LegHistory90s|1997, c. 18}}, s. 42, c. 23, s. 13; | {{LegHistory90s|1997, c. 18}}, s. 42, c. 23, s. 13; | ||
{{LegHistory10s|2019, c. 25}}, s. 192. | {{LegHistory10s|2019, c. 25}}, s. 192; | ||
{{LegHistory20s|2022, c. 17}}, s. 17. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|487.01}} | ||
|{{NoteUp|487.01|5.1|5.2}} | |{{NoteUp|487.01|5.1|5.2}} | ||
|{{terms- | |{{terms- | ||
| Line 115: | Line 118: | ||
{{reflist|2}} | {{reflist|2}} | ||
===Different Territorial Divisions=== | ===Different Territorial Divisions=== | ||
{{seealso| | {{seealso|Applications for Judicial Authorizations#Different Territorial Divisions}} | ||
The rules concerning territorial divisions for s. 487 warrants equally apply to general warrants: | The rules concerning territorial divisions for s. 487 warrants equally apply to general warrants: | ||
| Line 144: | Line 128: | ||
; Execution in Canada | ; Execution in Canada | ||
(6) A warrant issued under subsection (1) {{AnnSec4|487.01(1)}} may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed. <br> | (6) A warrant issued under subsection (1) {{AnnSec4|487.01(1)}} may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed. <br> | ||
(7) [Repealed, 2022, c. 17, s. 17] | |||
{{LegHistory90s|1993, c. 40}}, s. 15; | {{LegHistory90s|1993, c. 40}}, s. 15; | ||
{{LegHistory90s|1997, c. 18}}, s. 42, c. 23, s. 13; | {{LegHistory90s|1997, c. 18}}, s. 42, c. 23, s. 13; | ||
{{LegHistory10s|2019, c. 25}}, s. 192. | {{LegHistory10s|2019, c. 25}}, s. 192; | ||
{{LegHistory20s|2022, c. 17}}, s. 17. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|487.01}} | ||
|{{NoteUp|487.01|6}} | |{{NoteUp|487.01|6}} | ||
|{{terms- | |{{terms- | ||
| Line 158: | Line 145: | ||
==Video Surveillance== | ==Video Surveillance== | ||
* [[Video Surveillance]] | |||
* | |||
==Anticipatory Warrants== | ==Anticipatory Warrants== | ||
| Line 203: | Line 157: | ||
</ref> | </ref> | ||
An anticipatory warrant to seized text messages from an telephone service provider has some support to require a general warrant as opposed to a wiretap warrant.<ref> | An anticipatory warrant to seized text messages from an telephone service provider has some support to require a general warrant as opposed to a wiretap warrant.<ref> | ||
{{CanLIIRP|Telus|fwq20|2013 SCC 16 (CanLII)|[2013] 2 SCR 3}}{{perSCC|Abella J}} court divided whether it requires wiretap instead of general warrant<br> | {{CanLIIRP|Telus|fwq20|2013 SCC 16 (CanLII)|[2013] 2 SCR 3}}{{perSCC-H|Abella J}} court divided whether it requires wiretap instead of general warrant<br> | ||
</ref> | </ref> | ||
| Line 217: | Line 171: | ||
It may also authorize the use of "vision enhancement equipment", including binoculars, night vision devices, video cameras, etc.<ref> | It may also authorize the use of "vision enhancement equipment", including binoculars, night vision devices, video cameras, etc.<ref> | ||
{{CanLIIRP|Li|fw1qd|2013 ONCA 81 (CanLII)|296 CCC (3d) 408}}{{perONCA|Watt JA}}{{atsL|fw1qd|72|}}, {{atsL-np|fw1qd|94|}}</ref> | {{CanLIIRP|Li|fw1qd|2013 ONCA 81 (CanLII)|296 CCC (3d) 408}}{{perONCA-H|Watt JA}}{{atsL|fw1qd|72|}}, {{atsL-np|fw1qd|94|}}</ref> | ||
; Computer Searches | ; Computer Searches | ||
Latest revision as of 20:31, 3 September 2024
| This page was last substantively updated or reviewed January 2023. (Rev. # 96334) |
General Principles
Section 487.01(1) provides a provincial or superior court judge to grant police the general power to "use any device or investigative technique, or procedure" or otherwise do any thing described in the warrant which would constitute an unreasonable search or seizure.[1]
General warrants were added to the Code in 1993, Bill-109 which added s. 487.01 to permit further types of investigative techniques to be used.
- Information for general warrant
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges] may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
- (a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
- (b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
- (c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
- Limitation
(2) Nothing in subsection (1) [general warrants – requirements for authorization] shall be construed as to permit interference with the bodily integrity of any person.
- Search or seizure to be reasonable
(3) A warrant issued under subsection (1) [general warrants – requirements for authorization] shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.
[omitted (4), (5), (5.1), (5.2), (6) and (7)]
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13; 2019, c. 25, s. 192; 2022, c. 17, s. 17.
[annotation(s) added]
A general warrant authorizes the use of "any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure." The pre-conditions require that:[2]
- There are reasonable grounds to believe an offence has been or will be committed and information concerning the offence will be obtained through the use of the technique, procedure or device or doing of the thing.
- It is in the best interests of the administration of justice to issue the warrant.
- There is no other provision in the Criminal Code or any other Act of Parliament that would provide for the warrant, authorization or order permitting the technique to be done.
Warrants under s. 487.01 are unique from all warrants. They do not have any special or procedural limitations. They authorize any police activity that would intrude on s. 8 rights.[3]
The phrase "information concerning the offence" should be "given the broadest possible interpretation" and "includes whatever is necessary to get at the truth and properly and fairly dispose of the case."[4]
- ↑
R v Li, 2013 ONCA 81 (CanLII), 296 CCC (3d) 408, per Watt JA, at para 92 - s.487.01 was created as a response to the findings of R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, per La Forest J
- ↑
R v KZ, 2014 ABQB 235 (CanLII), 589 AR 21, per Hughes J, at para 22
- ↑ R v Ha, 2009 ONCA 340 (CanLII), 245 CCC (3d) 546, per MacPherson JA, at paras 24 to 25
- ↑
R v Ongley, [2003] OJ No 3934 (ONSC)(*no CanLII links)
, per Langdon J, at para 13
"No Other Provision"
Interpreting the meaning of s. 487.01(1)(c) should focus "on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute". [1] The provision should be broad in meaning to prevent presumptive use of these warrants. [2] They should be used "sparingly."[3]
The general warrant must not be used to "circumvent other authorization provisions that are available but contain more onerous pre-conditions."[4]
A "covert entry and search" are governed by 487.01.[5]
A general warrant can authorize multiple "covert entries and searches on private property."[6]
A general warrant may be granted to mimic a theft to seize the accused luggage which contained drugs.[7] In circumstances where persons' safety may be at risk, it is necessary for those risks to be addressed in the ITO.[8]
Where a Part VI wiretap warrant is available, there can be no general warrant.[9]
- ↑
R v Telus Communications, 2013 SCC 16 (CanLII), [2013] 2 SCR 3, per Abella J, at para 17
- ↑ Telus, ibid., at para 19
- ↑
Telus, ibid.
R v Christiansen, 2017 ONCA 941 (CanLII), per curiam, at para 10 - re using General Warrant when CDSA warrant would have required a higher standard of proof
- ↑
Telus, ibid.
- ↑ R v Ha, 2009 ONCA 340 (CanLII), 245 CCC (3d) 546, per MacPherson JA, at para 38
- ↑ Ha, ibid.
- ↑ R v Knight, 2008 NLCA 67 (CanLII), 241 CCC (3d) 353, per Welsh JA
- ↑ Knight, ibid.
- ↑ Telus, ibid.
Procedure
Notice Requirements
487.01
[omitted (1), (2), (3), (4) and (5)]
- Notice after covert entry
(5.1) A warrant issued under subsection (1) [general warrants – requirements for authorization] that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3) [general warrants – terms and conditions], that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.
- Extension of period for giving notice
(5.2) Where the judge who issues a warrant under subsection (1) [general warrants – requirements for authorization] or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) [general warrants – notice after covert entry] is to be given, is satisfied that the interests of justice warrant the granting of the application, the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
[omitted (6) and (7)]
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13; 2019, c. 25, s. 192; 2022, c. 17, s. 17.
[annotation(s) added]
A failure of the authorizing justice to require police to give notice of a covert entry and surveillance may render the warrant invalid.[1]
- ↑ R v Pipping, 2020 BCCA 104 (CanLII), 386 CCC (3d) 431, per Garson JA
Different Territorial Divisions
The rules concerning territorial divisions for s. 487 warrants equally apply to general warrants:
487.01
[omitted (1), (2), (3), (4), (5), (5.1) and (5.2)]
- Execution in Canada
(6) A warrant issued under subsection (1) [general warrants – requirements for authorization] may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.
(7) [Repealed, 2022, c. 17, s. 17]
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13; 2019, c. 25, s. 192; 2022, c. 17, s. 17.
[annotation(s) added]
Video Surveillance
Anticipatory Warrants
An anticipatory warrants are those "that may only be executed upon the fulfillment of certain pre-conditions."[1]
Anticipatory warrants can only be authorized as a general warrant under s. 487.01.[2] An anticipatory warrant to seized text messages from an telephone service provider has some support to require a general warrant as opposed to a wiretap warrant.[3]
- ↑ R v Brooks, 2003 CanLII 57389 (ON CA), 178 CCC (3d) 361, per Moldaver JA , at para 20
- ↑
R v Cameron, 1984 CanLII 474 (BCCA), 16 CCC (3d) 240, per Esson JA
R v Lucas, 2014 ONCA 561 (CanLII), 313 CCC (3d) 159, per curiam
- ↑
R v Telus, 2013 SCC 16 (CanLII), [2013] 2 SCR 3, per Abella J court divided whether it requires wiretap instead of general warrant
Other Circumstances
A 487.01 warrant may authorize an "covert" search. [1] This includes "covert" entries into a residence.[2]
It may also authorize the use of "vision enhancement equipment", including binoculars, night vision devices, video cameras, etc.[3]
- Computer Searches
Where a search warrant is executed for a computer search and evidence of an unrelated offence is discovered, the proper procedure is to apply for a search warrant and not a general warrant.[4]
- ↑ R v Ha, 2009 ONCA 340 (CanLII), 245 CCC (3d) 546, per MacPherson JA
- ↑ R v Shin, 2015 ONCA 189 (CanLII), 322 CCC (3d) 554, per Gillese JA
- ↑ R v Li, 2013 ONCA 81 (CanLII), 296 CCC (3d) 408, per Watt JA, at paras 72, 94
- ↑
R v KZ, 2014 ABQB 235 (CanLII), 589 AR 21, per Hughes J, at para 32
See Also
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