Special Search Issues: Difference between revisions
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[[fr:Problèmes de fouilles spéciaux]] | |||
{{Currency2|August|2022}} | |||
{{LevelZero}} | {{LevelZero}} | ||
{{HeaderWarrants}} | {{HeaderWarrants}} | ||
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* [[Computer-related Search Issues]] | * [[Computer-related Search Issues]] | ||
==Searches That May Intrude on Solicitor- | ==Searches That May Intrude on Solicitor-Client Privilege== | ||
* [[Searches Intruding on Solicitor-Client Privilege]] | * [[Searches Intruding on Solicitor-Client Privilege]] | ||
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{{seealso|Privilege}} | {{seealso|Privilege}} | ||
Confidential records kept by a First Nations Band persuant to a Band Counsel Resolution can be subject to a search warrant.<ref> | Confidential records kept by a First Nations Band persuant to a Band Counsel Resolution can be subject to a search warrant.<ref> | ||
{{ | {{CanLIIRP|Tomah|1lxfq|1996 CanLII 4847 (NB CA)|465 APR 232}}{{TheCourt}}{{Atp|5}}<br> | ||
</ref> | </ref> | ||
When a peace officer is "applying for" and "executing search warrants should be alive to ensuring that solicitor-client privilege is protected to the greatest extent possible, whenever the circumstances so warrant" | When a peace officer is "applying for" and "executing search warrants should be alive to ensuring that solicitor-client privilege is protected to the greatest extent possible, whenever the circumstances so warrant."<ref> | ||
{{ | {{CanLIIRP|Ciarniello|1hpb3|2004 CanLII 23110 (ON SC)|63 WCB (2d) 14 }}{{perONSC|Dawson J}}{{atL|1hpb3|77}}<br> | ||
</ref> | </ref> | ||
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==Taking Pictures at the Scene== | ==Taking Pictures at the Scene== | ||
An officer may take photos at the scene of their investigation of what they believed to be a crime. Generally, they are entitled to record a scene that they are lawfully allowed to make observations of. <ref> | An officer may take photos at the scene of their investigation of what they believed to be a crime. Generally, they are entitled to record a scene that they are lawfully allowed to make observations of. <ref> | ||
{{ | {{CanLIIRx|Nguyen|fxq71|2013 BCSC 950 (CanLII)}}{{perBCSC|Williams J}}{{atsL|fxq71|109| to 114}}<br> | ||
{{ | {{CanLIIRx|Ly|fqwc3|2012 BCSC 504 (CanLII)}}{{perBCSC|Barrow J}}{{atL|fqwc3|42}} | ||
</ref> | </ref> | ||
It also follows that no violation of s. 10(b) could be found where an officer takes a picture of an accused while at the scene.<ref> | It also follows that no violation of s. 10(b) could be found where an officer takes a picture of an accused while at the scene.<ref> | ||
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Random roadside detentions and searches violate s. 8 right against unreasonable search and seizure. <ref> | Random roadside detentions and searches violate s. 8 right against unreasonable search and seizure. <ref> | ||
{{CanLIIRP|Hufsky|1ftg3|1988 CanLII 72 (SCC)|[1988] 1 SCR 621}}{{perSCC|Le Dain J}}<br> | {{CanLIIRP|Hufsky|1ftg3|1988 CanLII 72 (SCC)|[1988] 1 SCR 621}}{{perSCC|Le Dain J}}<br> | ||
{{ | {{CanLIIRP|Dedman|1ftwf|1985 CanLII 41 (SCC)|[1985] 2 SCR 2}}{{perSCC|Le Dain J}} - not authorized at common law<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
==Disclosing Evidence Seized Under a Warrant | ==Sharing Evidence with Foreign Law Enforcement== | ||
Cross-border sharing of evidence can be permitted. It will generally depend on whether the sharing was "resonable." This can be assessed in light of whether the evidence was lawfully obtained, were there “protocols”, “caveats” or agreements with the foreign jurisdiction, or whether the evidence may be used for improper purposes such as political prosecutions.<ref> | |||
{{CanLIIRPC|Wakeling v United States of America|gf8q7|2014 SCC 72 (CanLII)|[2014] 3 SCR 549}}{{perSCC|Moldaver J}} | |||
</ref> | |||
; Disclosing Evidence Seized Under a Warrant | |||
Generally, law enforcement will be able to disclose information and evidence to other law enforcement agencies without the need of a judicial authorization.<ref> | Generally, law enforcement will be able to disclose information and evidence to other law enforcement agencies without the need of a judicial authorization.<ref> | ||
{{ | {{ibid1|Wakeling}} | ||
</ref> | </ref> | ||
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[repealed 2019, c. 25. On December 18, 2019] | [repealed 2019, c. 25. On December 18, 2019] | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|487.03}} | ||
|{{NoteUp|487.03|1|1.1}} | |{{NoteUp|487.03|1|1.1}} | ||
}} | }} | ||
The execution of a wiretap warrant in a different province is governed by s. 188.1(2): | The execution of a [[Wiretaps|wiretap warrant]] in a different province is governed by s. 188.1(2): | ||
{{ | {{quotation3| | ||
; Execution in Canada | ; Execution in Canada | ||
188. | 188.1 An authorization given under section 184.2 {{AnnSec1|184.2}}, 186 {{AnnSec1|186}} or 188 {{AnnSec1|188}} may be executed at any place in Canada. Any peace officer who executes the authorization must have authority to act as a peace officer in the place where it is executed. | ||
{{LegHistory90s|1993, c. 40}}, s. 9; | {{LegHistory90s|1993, c. 40}}, s. 9; | ||
{{LegHistory10s|2019, c. 25}}, s. 66. | {{LegHistory10s|2019, c. 25}}, s. 66; | ||
{{LegHistory20s|2022, c. 17}}, s. 9. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|188.1}} | ||
|{{NoteUp|188.1}} | |{{NoteUp|188.1}} | ||
|{{terms- | |||
|"Canada" (s. 35 IA) | |||
|"peace officer" (s. 2) | |||
}} | |||
}} | }} | ||
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{{LegHistory90s|1999, c. 5}}, s. 16; | {{LegHistory90s|1999, c. 5}}, s. 16; | ||
{{LegHistory00s|2008, c. 18}}, s. 11; | {{LegHistory00s|2008, c. 18}}, s. 11; | ||
{{LegHistory10s|2019, c. 25}}, s. 191. | {{LegHistory10s|2019, c. 25}}, s. 191; | ||
{{LegHistory20s|2022, c. 17}}, s. 16. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|487}} | ||
|{{NoteUp|487|2}} | |{{NoteUp|487|2}} | ||
|{{terms- | |{{terms- | ||
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</ref> | </ref> | ||
The act of endorsing or " | The act of endorsing or "backing” a warrant "is a purely ministerial act."<ref> | ||
{{ | {{CanLIIRP|Vaillancourt|j26vs|2019 ABCA 317 (CanLII)|93 Alta LR (6th) 98}}{{TheCourtABCA}}{{atL|j26vs|34}}<br> | ||
{{CanLIIRP|Haley|gcjk6|1986 CanLII 4641 (ON CA)|27 CCC (3d) 454}}{{perONCA|MacKinnon CJ}} at 464<br> | {{CanLIIRP|Haley|gcjk6|1986 CanLII 4641 (ON CA)|27 CCC (3d) 454}}{{perONCA|MacKinnon CJ}} at 464<br> | ||
</ref> | </ref> | ||
| Line 146: | Line 160: | ||
{{LegHistory90s|1996, c. 31}}, s. 70. | {{LegHistory90s|1996, c. 31}}, s. 70. | ||
{{Annotation}} | {{Annotation}} | ||
|{{CCCSec2|477.3}} | |||
| | |||
|{{NoteUp|477.3|1|2|3}} | |{{NoteUp|477.3|1|2|3}} | ||
|{{terms- | |{{terms- | ||
|"Attorney General" (s. 2) | |"Attorney General" (s. 2) | ||
|"Canada" (s. 35 IA) | |"Canada" (s. 35 IA) | ||
|"justice" (s. 2) | |[[Definition_of_Judicial_Officers_and_Offices#.22Justice.22|"justice" (s. 2)]] | ||
|"territorial sea" (s. 35 IA) | |"territorial sea" (s. 35 IA) | ||
}} | }} | ||
Latest revision as of 16:04, 22 October 2024
| This page was last substantively updated or reviewed August 2022. (Rev. # 96614) |
Computer Investigations
Searches That May Intrude on Solicitor-Client Privilege
Journalist Records and Sources
Other Privileged Records
Confidential records kept by a First Nations Band persuant to a Band Counsel Resolution can be subject to a search warrant.[1]
When a peace officer is "applying for" and "executing search warrants should be alive to ensuring that solicitor-client privilege is protected to the greatest extent possible, whenever the circumstances so warrant."[2]
- ↑
R v Tomah, 1996 CanLII 4847 (NB CA), 465 APR 232, per curiam, at p. 5
- ↑
R v Ciarniello, 2004 CanLII 23110 (ON SC), 63 WCB (2d) 14, per Dawson J, at para 77
Assistance Orders
Taking Pictures at the Scene
An officer may take photos at the scene of their investigation of what they believed to be a crime. Generally, they are entitled to record a scene that they are lawfully allowed to make observations of. [1] It also follows that no violation of s. 10(b) could be found where an officer takes a picture of an accused while at the scene.[2]
- ↑
R v Nguyen, 2013 BCSC 950 (CanLII), per Williams J, at paras 109 to 114
R v Ly, 2012 BCSC 504 (CanLII), per Barrow J, at para 42 - ↑
Ly, ibid.
Nguyen, supra
Motor Vehicle Searches
- Random Roadside Searches
Random roadside detentions and searches violate s. 8 right against unreasonable search and seizure. [1]
- ↑
R v Hufsky, 1988 CanLII 72 (SCC), [1988] 1 SCR 621, per Le Dain J
R v Dedman, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, per Le Dain J - not authorized at common law
Sharing Evidence with Foreign Law Enforcement
Cross-border sharing of evidence can be permitted. It will generally depend on whether the sharing was "resonable." This can be assessed in light of whether the evidence was lawfully obtained, were there “protocols”, “caveats” or agreements with the foreign jurisdiction, or whether the evidence may be used for improper purposes such as political prosecutions.[1]
- Disclosing Evidence Seized Under a Warrant
Generally, law enforcement will be able to disclose information and evidence to other law enforcement agencies without the need of a judicial authorization.[2]
- ↑ Wakeling v United States of America, 2014 SCC 72 (CanLII), [2014] 3 SCR 549, per Moldaver J
- ↑ Wakeling, ibid.
Executing Search Warrants in Another Province
- Execution in another province
487.03 (1) If a warrant is issued under section 487.01 [general warrants], 487.05 [warrant to Obtain DNA samples] or 492.1 [tracking warrants] or subsection 492.2(1) [warrant for transmission data recorder] in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.
- Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.
(2) [Repealed, 2007, c. 22, s. 7]
1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.
[repealed 2019, c. 25. On December 18, 2019]
[annotation(s) added]
The execution of a wiretap warrant in a different province is governed by s. 188.1(2):
- Execution in Canada
188.1 An authorization given under section 184.2 [one-party consent wiretap], 186 [authorization of wiretap] or 188 [emergency wiretaps] may be executed at any place in Canada. Any peace officer who executes the authorization must have authority to act as a peace officer in the place where it is executed.
1993, c. 40, s. 9; 2019, c. 25, s. 66; 2022, c. 17, s. 9.
[annotation(s) added]
Section 487 Warrants
487
[omitted (1)]
- Execution in Canada
(2) A warrant issued under subsection (1) [territorial search warrants – requirements] may be executed at any place in Canada. A public officer named in the warrant, or any peace officer, who executes the warrant must have authority to act in that capacity in the place where the warrant is executed.
[omitted (2.1), (2.2), (3) and (4)]
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11; 2019, c. 25, s. 191; 2022, c. 17, s. 16.
[annotation(s) added]
"Territorial division" is defined in s. 2 of the Code.[1]
The act of endorsing or "backing” a warrant "is a purely ministerial act."[2]
- ↑ See Definitions of Parties, Persons, Places and Organizations
- ↑
R v Vaillancourt, 2019 ABCA 317 (CanLII), 93 Alta LR (6th) 98, per curiam, at para 34
R v Haley, 1986 CanLII 4641 (ON CA), 27 CCC (3d) 454, per MacKinnon CJ at 464
International Point of Entry Searches/Border Searches
Exercise of Police Powers Outside of Canada
- Exercising powers of arrest, entry, etc.
477.3 (1) Every power of arrest, entry, search or seizure or other power that could be exercised in Canada in respect of an act or omission referred to in section 477.1 [offences at sea outside of Canada] may be exercised, in the circumstances referred to in that section,
- (a) at the place or on board the ship or marine installation or structure, within the meaning of section 2 of the Oceans Act, where the act or omission occurred; or
- (b) where hot pursuit has been commenced, at any place on the seas, other than a place that is part of the territorial sea of any other state.
- Arrest, search, seizure, etc.
(2) A justice or judge in any territorial division in Canada has jurisdiction to authorize an arrest, entry, search or seizure or an investigation or other ancillary matter related to an offence
- (a) committed in or on the territorial sea of Canada or any area of the sea that forms part of the internal waters of Canada, or
- (b) referred to in section 477.1 [offences at sea outside of Canada]
in the same manner as if the offence had been committed in that territorial division.
- Limitation
(3) Where an act or omission that is an offence by virtue only of section 477.1 [offences at sea outside of Canada] is alleged to have been committed on board any ship registered outside Canada, the powers referred to in subsection (1) [offences at sea outside of Canada – police power of arrest, entry, search and seizure] shall not be exercised outside Canada with respect to that act or omission without the consent of the Attorney General of Canada.
1990, c. 44, s. 15; 1996, c. 31, s. 70.
[annotation(s) added]