Telewarrants (Until 2022): Difference between revisions
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==Impracticable to Attend in Person== | ==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.<ref> | 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.<ref> | ||
e.g. {{ | e.g. {{CanLIIRP|Adansi|1wbr0|2008 ONCJ 144 (CanLII)|170 CRR (2d) 132}}{{perONCJ|Clark J}}{{atL|1wbr0|74}}<br> | ||
{{ | {{CanLIIRP|Breland|5r07|2000 ABPC 110 (CanLII)|77 CRR (2d) 351}}{{perABPC|Demetrick J}}<br> | ||
{{ | {{CanLIIRP|Brick|2bqwm|1989 CanLII 3424 (AB QB)|98 AR 208}}{{perABQB|Roslak J}}<br> | ||
{{CanLIIR-N|Sattelberger|, [1995] 105 Man. R. (2d) 252 (Q.B.)}}{{at-|36}}<br> | {{CanLIIR-N|Sattelberger|, [1995] 105 Man. R. (2d) 252 (Q.B.)}}{{at-|36}}<br> | ||
{{ | {{CanLIIRP|Le|228td|2009 BCCA 14 (CanLII)|184 CRR (2d) 67}}{{perBCCA|Levine JA}} - failed to give reason for not checking on avail. of JP<br> | ||
</ref> | </ref> | ||
The term "practicable" in this context "means something less than impossible and imports a large measure of practicality, what may be termed common sense."<ref> | The term "practicable" in this context "means something less than impossible and imports a large measure of practicality, what may be termed common sense."<ref> | ||
{{ | {{CanLIIRP|Erickson|1g5mg|2003 BCCA 693 (CanLII)|19 CR (6th) 367}}{{perBCCA|Saunders JA}}{{atL|1g5mg|33}}<br> | ||
</ref> | </ref> | ||
; Burden | ; Burden | ||
The onus is upon the defence to establish "practicality".<ref> | The onus is upon the defence to establish "practicality".<ref> | ||
{{ | {{CanLIIRP|Nguyen|22mm2|2009 BCCA 89 (CanLII)|243 CCC (3d) 392}}{{perBCCA|Kirkpatrick JA}}</ref> | ||
; Verification of Unavailability | ; Verification of Unavailability | ||
It is expected that the applicant will verify that a local JP is not available.<ref> | It is expected that the applicant will verify that a local JP is not available.<ref> | ||
{{ | {{CanLIIRP|Mui Thi Nguyen|1p5rw|2006 BCPC 398 (CanLII)|BCJ No 1922}}{{perBCPC|Young J}}{{atL|1p5rw|97}} | ||
</ref> | </ref> | ||
It has been suggested that where there is a "possibility" that a judge may be available, then the applicant should make an inquiry.<ref> | It has been suggested that where there is a "possibility" that a judge may be available, then the applicant should make an inquiry.<ref> | ||
{{ | {{CanLIIRP|Koprowski|1mql3|2005 BCPC 657 (CanLII)|139 CRR (2d) 264}}{{perBCPC|Devitt J}}{{atL|1mql3|13}}</ref> | ||
An officer can rely on past experience to conclude that a justice of the peace would not be available at the time desired.<ref> | An officer can rely on past experience to conclude that a justice of the peace would not be available at the time desired.<ref> | ||
{{ | {{CanLIIRx|Martins|hr6s5|2018 ONCA 315 (CanLII)}}{{TheCourtONCA}}{{atL|hr6s5|3}}<br> | ||
</ref> | </ref> | ||
The absence of any efforts made by the officer to confirm the unavailability of the JP can invalidate the warrant.<ref> | The absence of any efforts made by the officer to confirm the unavailability of the JP can invalidate the warrant.<ref> | ||
{{ | {{CanLIIRP|Ling|22jfr|2009 BCCA 70 (CanLII)|241 CCC (3d) 409}}{{perBCCA|Bauman JA}} | ||
</ref> | </ref> | ||
; Lack of Reasons | ; Lack of Reasons | ||
Where the applicant does not state the reasons or efforts made, it may invalidate the warrant.<ref> | Where the applicant does not state the reasons or efforts made, it may invalidate the warrant.<ref> | ||
e.g. See {{ | e.g. See {{ibid1|Ling}}<br> | ||
Adansi -- warrant invalidated<br> | Adansi -- warrant invalidated<br> | ||
{{ibid1|Ling}}{{atsL|22jfr|26| to 27}}<br> | {{ibid1|Ling}}{{atsL|22jfr|26| to 27}}<br> | ||
| Line 133: | Line 133: | ||
Acceptable reasons for applying for a telewarrant: | Acceptable reasons for applying for a telewarrant: | ||
* distance to reach the Judge or Justice of the Peace;<ref> | * distance to reach the Judge or Justice of the Peace;<ref> | ||
{{ | {{CanLIIRP|Martens|1j2gw|2004 BCSC 1450 (CanLII)|BCJ No 2300}}{{perBCSC|Davies J}}{{atL|1j2gw|221}}<br> | ||
{{ | {{CanLIIRP|Phillips|1kf1g|2004 BCSC 1797 (CanLII)|65 WCB (2d) 471}}{{perBCSC|Bernard J}}{{atL|1kf1g|24}}<br> | ||
</ref> | </ref> | ||
* application to be made outside court hours;<ref> | * application to be made outside court hours;<ref> | ||
{{ | {{CanLIIRx|Bui and Trac|1hq82|2004 BCPC 277 (CanLII)}}{{perBCPC|Spence J}}{{atL|1hq82|20}}<br> | ||
{{supra1|Martens}}{{atL|1j2gw|221}}<br> | {{supra1|Martens}}{{atL|1j2gw|221}}<br> | ||
{{ | {{CanLIIRx|Murphy|27nmj|2010 ONSC 595 (CanLII)}}{{perONSC|DiTomaso J}}{{atsL|27nmj|23| to 39}}<br> | ||
</ref> | </ref> | ||
* short time limit to obtain the warrant. (e.g. when 4 hour time limit on blood sample)<ref> | * short time limit to obtain the warrant. (e.g. when 4 hour time limit on blood sample)<ref> | ||
{{ | {{CanLIIRP|Pedersen|1gdxb|2004 BCCA 64 (CanLII)|2 MVR (5th) 1}}{{perBCCA|Levine JA}}{{atL|1gdxb|23}}<br> | ||
</ref> | </ref> | ||
| Line 272: | Line 272: | ||
; Failure to File a Report | ; Failure to File a Report | ||
A failure to file a return within 7 days under s. 487.1(9) is a breach of s. 8{{CCRF}}.<Ref> | A failure to file a return within 7 days under s. 487.1(9) is a breach of s. 8{{CCRF}}.<Ref> | ||
{{ | {{CanLIIRP|Martens|1j2gw|2004 BCSC 1450 (CanLII)|BCJ No 2300}}{{perBCSC|Davies J}}{{AtL|1j2gw|273}} | ||
{{contra}} {{CanLIIR-N|Skin| (1989), 13 MVR (2d) 130 (B.C. Co. Ct.)}}{{perBCSC-H|Curtis J}} | {{contra}} {{CanLIIR-N|Skin| (1989), 13 MVR (2d) 130 (B.C. Co. Ct.)}}{{perBCSC-H|Curtis J}} | ||
</ref> | </ref> | ||
Revision as of 21:07, 22 August 2021
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) If 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 an application for a warrant in accordance with section 487 [territorial search warrants], 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.
[omitted (2), (2.1), (3), (3.1), (4), (5), (6), (6.1), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37; 2018, c. 21, s. 19.
[annotation(s) added]
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
[omitted (1), (2) and (3)]
- 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 [telewarrants] applies, with such modifications as the circumstances require, to the warrant.
1997, c. 18, s. 45; 1998, c. 37, s. 23.
- ↑
See also Criminal Code and Related Definitions
Timberwolf Log Trading Ltd v British Columbia, 2011 BCSC 142 (CanLII), per Gropper J - applicant not a peace officer
Contents of Information
487.1
[omitted (1), (2), (2.1), (3) and (3.1)]
- 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.
[omitted (5), (6), (6.1), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
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 that the item(s) will be located within the place;
- details on any prior applications with respect to the same matter.
Issuing Telewarrant
487.1
[omitted (1), (2), (2.1), (3), (3.1) and (4)]
- Issuing warrant
(5) A justice referred to in subsection (1) [telewarrants] may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued under subsection 487(1) [territorial search warrants] if the justice 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) [telewarrants – contents of information];
- (b) discloses reasonable grounds for dispensing with an information presented personally and in writing; and
- (c) discloses reasonable grounds in accordance with paragraph 487(1)(a) [territorial search warrants – requirements – respect to an offence], (b) [territorial search warrant – will afford evidence of a crime or reveal location of suspect] or (c) [territorial search warrants – requirements – used to commit], as the case may be, for the issuance of a warrant in respect of an indictable offence.
The justice may require that the warrant be executed within the period that he or she may order.
[omitted (6), (6.1), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37; 2018, c. 21, s. 19.
[annotation(s) added]
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), 170 CRR (2d) 132, per Clark J, at para 74
R v Breland, 2000 ABPC 110 (CanLII), 77 CRR (2d) 351, per Demetrick J
R v Brick, 1989 CanLII 3424 (AB QB), 98 AR 208, per Roslak J
R v Sattelberger, [1995] 105 Man. R. (2d) 252 (Q.B.)(*no CanLII links) , at para 36
R v Le, 2009 BCCA 14 (CanLII), 184 CRR (2d) 67, per Levine JA - failed to give reason for not checking on avail. of JP
- ↑
R v Erickson, 2003 BCCA 693 (CanLII), 19 CR (6th) 367, per Saunders JA, at para 33
- ↑ R v Nguyen, 2009 BCCA 89 (CanLII), 243 CCC (3d) 392, per Kirkpatrick JA
- ↑ R v Mui Thi Nguyen, 2006 BCPC 398 (CanLII), BCJ No 1922, per Young J, at para 97
- ↑ R v Koprowski, 2005 BCPC 657 (CanLII), 139 CRR (2d) 264, per Devitt J, at para 13
- ↑
R v Martins, 2018 ONCA 315 (CanLII), per curiam, at para 3
- ↑ R v Ling, 2009 BCCA 70 (CanLII), 241 CCC (3d) 409, per Bauman JA
- ↑
e.g. See Ling, ibid.
Adansi -- warrant invalidated
Ling, ibid., at paras 26 to 27
Le, supra, at para 26
- ↑ e.g. Le, supra, 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), BCJ No 2300, per Davies J, at para 221
R v Phillips, 2004 BCSC 1797 (CanLII), 65 WCB (2d) 471, per Bernard J, at para 24
- ↑
R v Bui and Trac, 2004 BCPC 277 (CanLII), per Spence J, at para 20
Martens, supra, at para 221
R v Murphy, 2010 ONSC 595 (CanLII), per DiTomaso J, at paras 23 to 39
- ↑
R v Pedersen, 2004 BCCA 64 (CanLII), 2 MVR (5th) 1, per Levine JA, at para 23
Procedure
Transmission of Information
487.1
[omitted (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.
[omitted (3), (3.1), (4), (5), (6), (6.1), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
Sworn Oath
487.1
[omitted (1), (2) and (2.1)]
- Administration of oath
(3) For the purposes of subsection (2) [telewarrants – information on oath and record], 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) [telewarrants – information submitted by other means of telecom.] 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.
[omitted (4), (5), (6), (6.1), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
[annotation(s) added]
Verbal Issuance of Telewarrant
487.1
[omitted (1), (2), (2.1), (3), (3.1), (4) and (5)]
- 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 [forms], 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.
[omitted (6.1), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
[annotation(s) added]
Written Issuance of Telewarrant
487.1
[omitted (1), (2), (2.1), (3), (3.1), (4), (5) and (6)]
- 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 [forms], 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.
[omitted (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
Execution of Search
Posting of Warrant
487.1
[omitted (1), (2), (2.1), (3), (3.1), (4), (5), (6) and (6.1)]
- Providing facsimile
(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication shall, before or as soon as practicable after entering the place or premises to be searched, give a facsimile of the warrant to any person who is 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 shall, on entering or as soon as practicable after entering the place or premises, cause a facsimile of the warrant to be suitably affixed in a prominent place within the place or premises.
[omitted (9), (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37; 2018, c. 21, s. 19.
Report to Clerk on Search
Once the search is complete, the authorized peace officer is required under s. 487.1(9) to file a report with the "clerk of the court" for the justice who authorized the warrant.[1]
487.1
[omitted (1), (2), (2.1), (3), (3.1), (4), (5), (6), (6.1), (7) and (8)]
- 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.
[omitted (10), (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
- Form
The report to justice should use Form 5.2.[2]
The contents should include:
- the time and date of the execution;
- list of things seized and the location they are being held; and
- where the thing seized is not identified in the warrant, list the officer’s grounds for believing the things had been obtained by, or used in, the commission of an offence.
- Report Filing Location
The report is filed to the "clerk of the court for the territorial division in which the warrant was intended for execution". This may be different than the court that authorized the warrant.
- Failure to File a Report
A failure to file a return within 7 days under s. 487.1(9) is a breach of s. 8 of the Charter of Rights and Freedoms.[3]
- ↑ R v Paterson, 2017 SCC 15 (CanLII), [2017] 1 SCR 202, at para 9 ("Section 487.1(9) of the Criminal Code requires a peace officer to whom a warrant is issued to file a report (“form 5.2 report”) to the clerk of the court, “as soon as practicable but within a period not exceeding seven days after the warrant has been executed”, containing (among other things) a list of things seized and the grounds for seizing anything that was not listed on the Information to Obtain a Search Warrant.")
- ↑
Paterson, supra, at para 9
- ↑ R v Martens, 2004 BCSC 1450 (CanLII), BCJ No 2300, per Davies J, at para 273 contra R v Skin (1989), 13 MVR (2d) 130 (B.C. Co. Ct.)(*no CanLII links) , per Curtis J
Report to Justice
487.1
[omitted (1), (2), (2.1), (3), (3.1), (4), (5), (6), (6.1), (7), (8) and (9)]
- 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.
[omitted (11) and (12)]
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
Evidence
487.1
[omitted (1), (2), (2.1), (3), (3.1), (4), (5), (6), (6.1), (7), (8), (9) and (10)]
- 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) [telewarrants – proof of authorization].
R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.
[annotation(s) added]
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