Assistance Orders: Difference between revisions

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[[Fr:Ordonnances d’assistance]]
{{Currency2|January|2023}}
{{LevelZero}}
{{LevelZero}}
{{HeaderWarrants}}
{{HeaderWarrants}}
==General Principles==
==General Principles==
An assistance order is a form of supplementary authorization that is a companion to primary authorization. It permits police to compel the participation of persons in the execution of the primary authorization, which will usually be search warrant but could also include arrest warrant.  
An assistance order is a form of supplementary authorization that is a companion to primary authorization, usually an authorization under s. 487 or 492.2(2). It permits police to compel the participation of persons in the execution of the primary authorization, which will usually be search warrant but could also include arrest warrant.  


{{quotation|
The combination of the primary warrant with an assistance order can "be used ... to effectively require a third person to deliver items to the police."<ref>
'''Assistance order'''<br>
{{CanLIIRP|National Post|1g7fz|2004 CanLII 8048 (ON SC)|19 CR (6th) 393}}{{perONSC|Benotto J}}
487.02 Where an authorization is given under section 184.2 [''[[Consent Wiretaps|consent wiretap]]''], 184.3, 186 <nowiki>[</nowiki>[[Third Party Wiretaps|''wiretap'']]<nowiki>]</nowiki> or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2) <nowiki>[</nowiki>[[Warrant for Transmission Data Recorder|''transmission data recorder warrant'']]<nowiki>]</nowiki>, the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.
</ref>
<br>
 
1993, c. 40, s. 15; 1997, c. 18, s. 43.<br>
{{quotation2|
[''annotations added'']
; Assistance order
|[http://canlii.ca/t/7vf2#sec487.02 CCC]
487.02 (1) If an authorization is given under section 184.2 {{AnnSec1|184.2}}, 186 {{AnnSec1|186}} or 188 {{AnnSec1|188}} or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant. The order has effect throughout Canada.
 
; Telecommunication
(2) If the authorization is given or the warrant is issued by a means of telecommunication under section 184.3 {{AnnSec1|184.3}} or 487.1 {{AnnSec4|487.1}}, the order to provide assistance may be issued by a means of telecommunication and, in that case, section 184.3 {{AnnSec1|184.3}} or 487.1 {{AnnSec4|487.1}}, as the case may be, applies with respect to the order.
 
{{LegHistory90s|1993, c. 40}}, s. 15;
{{LegHistory90s|1997, c. 18}}, s. 43;
{{LegHistory10s|2014, c. 31}}, s. 20;
{{LegHistory10s|2019, c. 25}}, s. 195;
{{LegHistory20s|2022, c. 17}}, s. 18.
 
{{Annotation}}
|{{CCCSec2|487.02}}
|{{NoteUp|487.02|1|2}}
}}
}}
The requirements of an assistance order are:
* a warrant was made under the Code (or an order under s. 492.2(2))
* a person's assistance is required to give effect to the warrant or order
* the person capable to provide assistance is not the accused


Assistance orders do not apply to production orders.<ref>
Assistance orders do not apply to production orders.<ref>
Re Subscriber Information, [http://canlii.ca/t/gkldk 2015 ABPC 178] (CanLII){{perABPC|Henderson J}}, at para 46<br>
{{CanLIIRxC|Re Subscriber Information|gkldk|2015 ABPC 178 (CanLII)}}{{perABPC|Henderson J}}{{atL|gkldk|46}}<br>
</ref>
</ref>


Section 490.02 can be used to compel employees of an office to locate and gather items and provide them to police.<ref>
Section 490.02 can be used to compel employees of an office to locate and gather items and provide them to police.<ref>
R v National Post, [http://canlii.ca/t/1g7fz 2004 CanLII 8048] (ON SC){{perONSC|Benotto J}}, at para 32<br>
{{supra1|National Post}}{{atL|1g7fz|32}}<br>
</ref>
</ref>


An assistance order can be used to require a telco to disclose subscriber information in company with a s. 492.2 order for a transmission data recorder.<ref>
An assistance order can be used to require a telco to disclose subscriber information in company with a s. 492.2 order for a transmission data recorder.<ref>
''R v Telus'', [http://canlii.ca/t/gj0bt 2015 ONSC 3072] (CanLII){{perONSC|Nordheimer J}}
{{CanLIIRx|Telus|gj0bt|2015 ONSC 3072 (CanLII)}}{{perONSC|Nordheimer J}}
</ref>
 
The order cannot be used to force an accused to unlock his phone as it would force an accused to incriminate himself contrary to s. 7 of the Charter.<ref>
{{CanLIIRx|Talbot|hp2fw|2017 ONCJ 814 (CanLII)}}{{perONCJ|Applegate J}}
</ref>
</ref>


{{reflist|2}}
{{reflist|2}}

Latest revision as of 20:53, 22 August 2024

This page was last substantively updated or reviewed January 2023. (Rev. # 96217)

General Principles

An assistance order is a form of supplementary authorization that is a companion to primary authorization, usually an authorization under s. 487 or 492.2(2). It permits police to compel the participation of persons in the execution of the primary authorization, which will usually be search warrant but could also include arrest warrant.

The combination of the primary warrant with an assistance order can "be used ... to effectively require a third person to deliver items to the police."[1]

Assistance order

487.02 (1) If an authorization is given under section 184.2 [one-party consent wiretap], 186 [authorization of wiretap] or 188 [emergency wiretaps] or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant. The order has effect throughout Canada.

Telecommunication

(2) If the authorization is given or the warrant is issued by a means of telecommunication under section 184.3 [one-party consent wiretap by telewarrant] or 487.1 [telewarrants], the order to provide assistance may be issued by a means of telecommunication and, in that case, section 184.3 [one-party consent wiretap by telewarrant] or 487.1 [telewarrants], as the case may be, applies with respect to the order.

1993, c. 40, s. 15; 1997, c. 18, s. 43; 2014, c. 31, s. 20; 2019, c. 25, s. 195; 2022, c. 17, s. 18.


[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.02(1) and (2)

The requirements of an assistance order are:

  • a warrant was made under the Code (or an order under s. 492.2(2))
  • a person's assistance is required to give effect to the warrant or order
  • the person capable to provide assistance is not the accused

Assistance orders do not apply to production orders.[2]

Section 490.02 can be used to compel employees of an office to locate and gather items and provide them to police.[3]

An assistance order can be used to require a telco to disclose subscriber information in company with a s. 492.2 order for a transmission data recorder.[4]

The order cannot be used to force an accused to unlock his phone as it would force an accused to incriminate himself contrary to s. 7 of the Charter.[5]

  1. ↑ R v National Post, 2004 CanLII 8048 (ON SC), 19 CR (6th) 393, per Benotto J
  2. ↑ Re Subscriber Information, 2015 ABPC 178 (CanLII), per Henderson J, at para 46
  3. ↑ National Post, supra, at para 32
  4. ↑ R v Telus, 2015 ONSC 3072 (CanLII), per Nordheimer J
  5. ↑ R v Talbot, 2017 ONCJ 814 (CanLII), per Applegate J
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