General Warrants

From Criminal Law Notebook
Revision as of 09:56, 1 February 2019 by Admin (talk | contribs) (Text replacement - "'''([a-zA-Z]+ [a-zA-Z]+ [a-zA-Z]+ [a-zA-Z]+ [a-zA-Z]+ [a-zA-Z]+)'''<br>" to "; $1")

General Principles

See also: 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.[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 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.

(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person.
(3) A warrant issued under subsection (1) 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.
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


– CCC

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]

  1. 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.
  2. It is in the best interests of the administration of justice to issue the warrant.
  3. 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]

  1. ↑ R v Li, 2013 ONCA 81 (CanLII), 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
  2. ↑ R v KZ, 2014 ABQB 235 (CanLII), per Hughes J, at para 22
  3. ↑ R v Ha, 2009 ONCA 340 (CanLII), per MacPherson JA at para 24, 25
  4. ↑ 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 warned 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]

  1. ↑ R v Telus Communications, 2013 SCC 16 (CanLII), per Abella J, at para 17
  2. ↑ Telus, ibid. at para 19
  3. ↑ 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
  4. ↑ Telus, ibid.
  5. ↑ R v Ha, 2009 ONCA 340 (CanLII), per MacPherson JA, at para 38
  6. ↑ Ha, ibid.
  7. ↑ R v Knight, 2008 NLCA 67 (CanLII), per Welsh JA
  8. ↑ Knight, ibid.
  9. ↑ Telus, ibid.

Procedure

Notice Requirements

487.01 (1) ...
Notice after covert entry
(5.1) A warrant issued under subsection (1) 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), 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) 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) 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.
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


– CCC

Telewarrant

487.01
...
Telewarrant provisions to apply
(7) Where a peace officer believes that it would be impracticable to appear personally before a judge 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.
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


– CCC

Different Territorial Divisions

See also: Applying for Judicial Authorizations#Different Territorial Divisions

The rules concerning territorial divisions for s. 487 warrants equally apply to general warrants:

487.01 (1) ...

Provisions to apply

(6) Subsections 487(2) and (4) apply, with such modifications as the circumstances require, to a warrant issued under subsection (1).
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


– CCC

Video Surveillance

A warrant is only needed when video surveillance is set-up in such a way that it collects information for which there is a reasonable expectation of privacy. So a camera in a public place such as a street does not need a warrant,[1] but a camera filming the inside of a dwelling would need one.

Section 487.01 addresses video surveillance:

487.01
...

Video surveillance

(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
Other provisions to apply
(5) The definition “offence” in section 183 and sections 183.1, 184.2 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 194 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of active peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


– CCC

A video camera requires a warrant where filming:

  • a hotel room [2]
  • a washroom stall [3]

Section 183 defines "offence" within the Wiretaps provisions.

  1. ↑ R v Esfahanian Ershad, 1991 CanLII 281 (BC SC), per Davies J
    R v Bryntwick, 2002 CanLII 10941 (ON SC), per Dunn J
  2. ↑ R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, per La Forest J
  3. ↑ R v Silva, 1995 CanLII 7242 (ON SC), per Zelinski J

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]

  1. ↑ R v Brooks, (2003) 2003 CanLII 57389 (ON CA), 178 CCC (3d) 361, per Moldaver JA at para 20
  2. ↑ R v Cameron (1985), 1984 CanLII 474 (BC CA), 16 CCC (3d) 240 (BCCA), per Esson JA
    R v Lucas, 2014 ONCA 561 (CanLII), per curiam
  3. ↑ R v Telus, [2013] 2 SCR 3, 2013 SCC 16 (CanLII), 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]

  1. ↑ R v Ha, 2009 ONCA 340 (CanLII), per MacPherson JA
  2. ↑ R v Shin, 2015 ONCA 189 (CanLII), per Gillese JA
  3. ↑ R v Li, 2013 ONCA 81 (CanLII), per Watt JA at para 72, 94
  4. ↑ R v KZ, 2014 ABQB 235 (CanLII), per Hughes J, at para 32
v • e
 
Types of Warrants
Warrants
Interceptions/Wiretaps
Retrieved from "https://criminalnotebook.ca/index.php?title=General_Warrants&oldid=24320"