THE ISSUING AND REVIEWING OF SEARCH WARRANTS …

THE ISSUING AND REVIEWING OF SEARCH WARRANTS

(UPDATED, JANUARY 2021)

JUDGE WAYNE GORMAN

THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR

INDEX

Page Number:

Introduction........................................................................................... 1

PRINCIPLES OF GENERAL APPLICATION

Statutory Basis...................................................................................... 1

Minimal Constitutional Standards........................................................ 1

The Five Main Questions..................................................................... 2

Reasonable Grounds............................................................................. 3

The Use of Information Obtained in Violation of the Charter............ 3

Solicitor-Client Privilege…………………………………………….. 4

The Role of the Judge in the Issuing of Search Warrants..................... 5

The Role of the Judge in Reviewing Challenged Search Warrants...... 5

Amplification......................................................................................... 6

Cross-examination of the Affiant........................................................... 7

Reviewing an Edited Information to Obtain.......................................... 8

Describing The Offence......................................................................... 10

The Place to be Searched....................................................................... 10

Effect of a Wrong Address................................................................... 11

Describing the Items to be Searched for............................................... 11

Overbreath and Vagueness.................................................................... 11

Receiving Additional Evidence not Contained

in the Information to Obtain.................................................................. 12

Providing the Police with Advice......................................................... 12

Hearsay Evidence.................................................................................. 14

Confidential Informants......................................................................... 14

Crime Stoppers Tips............................................................................... 17

Time of Search....................................................................................... 17

Searches at Night................................................................................... 17

Extended Periods................................................................................... 18

Successive Applications........................................................................ 18

Challenging the Validity of a Search Warrant...................................... 19

CHECKLISTS:

I The Information to Obtain (General Principles).................................. 20

II The Search Warrant (General Principles)............................................ 23

SEARCH WARRANTS

A section 487 Criminal Code Search Warrant........................................ 24

Checklist.................................................................................................. 28

Tracking Search Warrant (s.492.1).......................................................... 32

Checklist................................................................................................... 34

Transmission Data Recorder Warrant (s.492.2)...................................... 40

Checklist.................................................................................................. 42

Body Impression Search Warrant (s.487.092)......................................... 44

Checklist................................................................................................... 45

Blood Sample Search Warrant (s.256)..................................................... 47

Checklist................................................................................................... 49

Controlled Drugs and Substances Act Search Warrant............................ 51

Checklist................................................................................................... 54

Warrant to Seize Weapons (s.117.04)...................................................... 56

Checklist................................................................................................... 57

Gaming and Betting Search Warrant (s.199)............................................ 59

Checklist................................................................................................... 60

Valuable Minerals Search Warrant (s.395(12))........................................ 63

Checklist................................................................................................... 64

Telewarrants (s.487.1).............................................................................. 66

Checklist................................................................................................... 70

Warrant to Enter Dwelling Houses To Arrest (s.529.1)........................... 74

Checklist................................................................................................... 78

General Warrant (s.487.01)...................................................................... 81

Checklist................................................................................................... 90

Video Surveillance Warrant (487.01)...................................................... 93

Checklist................................................................................................... 94

DNA Search Warrant (s. 487.05)............................................................. 97

Checklist................................................................................................... 102

Collection of Additional Bodily Substances Search Warrant (s.487.09).. 101

Checklist.................................................................................................... 106

ANCILLARY ORDERS

Assistance Orders (s.487.02)..................................................................... 107

Checklist.................................................................................................... 106

Sealing Orders (s.487.3)............................................................................ 107

Checklist.................................................................................................... 108

Production Orders..................................................................................... 117

Checklist.................................................................................................... 125

Preservation Orders……………………………………………………… 132

Checklist…………………………………………………………………. 134

Conclusion................................................................................................... 136

1

INTRODUCTION:

The purpose of this paper is to consider the issuing and reviewing of search warrants.

The format of the paper is designed so as to consider principles of general application

(such as the use of hearsay and confidential informants) and then to consider specific

search warrant provisions as well as ancillary orders. A checklist of general

application is included as well as a checklist for each search warrant provision

reviewed.

All search warrants are based upon statutory provisions. A search warrant can be

used not only “to obtain ‘evidence’ of criminal activity that can be placed before a

court, but also to gather information to assist in the investigation of such activity”

(see R. Vu, [2011] B.C.J No. 2487 (C.A.)).

The importance of complying with the statutory requirements is illustrated by the

decision of the Ontario Court of Appeal in R. v. West, 2020 ONCA 473. In this case,

the accused was convicted of child pornography offences. In the course of their

investigation, the police obtained a production order. Its execution led to the

obtaining of a search warrant and evidence used to convict the accused. The accused

appealed from conviction, arguing that the production order should not have been

issued as the information to obtain used to obtain the order was predicated on the

wrong legal test.

PRINCIPLES OF GENERAL APPLICATION

The Statutory Basis for Search Warrants:

Search warrants are based solely upon statutory provisions. Therefore, it is important

to be familiar with the section of the statute which provides the authority to issue the

search warrant. The various search warrant provisions in the Criminal Code have

significantly different requirements, including limitations on jurisdiction. For

instance, only a provincial court judge has the jurisdiction to issue a DNA Warrant

pursuant to section 487.05 of the Criminal Code and there are certain search warrants

that only a judge of the Supreme Court can issue (an Obscene Material Warrant

pursuant to section 164 of the Criminal Code, for instance). In addition, the various

search warrant provisions in the Criminal Code contain other types of distinctions.

Some apply to both offences that have been committed or that may be committed in

the future. Others only apply to offences that have been committed. Some require

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the existence of reasonable grounds to believe and some only require a reasonable

suspicion to believe. As a result, when a judge is asked to issue a search warrant, he

or she must ensure that both the information to obtain the search warrant and the

search warrant itself comply with the section in the statute which authorizes the

judge to issue the search warrant.

THE MINIMUM CONSTITUTIONAL REQUIREMENTS

The Supreme Court of Canada in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, held

that suspicion is not a sufficient basis for the issuing of a search warrant. Such a

standard would fail to meet the minimum constitutional standards for the issuing of

search warrants that are consistent with section 8 of the Canadian Charter of Rights

and Freedoms, Constitution Act, 1982. The Court held that these minimum

constitutional standards require that the evidence presented to a judge in support of

the application for a search warrant be under oath and be based on "credibly-based

probability."

In R. v. Campbell, 2011 SCC 32, the Supreme Court of Canada indicated that in order

“to comply with s. 8 of the Charter, prior to conducting a search the police must

provide ‘reasonable and probable grounds, established upon oath, to believe that an

offence has been committed and that there is evidence to be found at the place of the

search.’”

THE FIVE MAIN QUESTIONS

Generally, there are five main questions which a judge must ensure that an

information to obtain a search warrant provides grounds to answer, before a search

warrant should be is issued:

1. that the items specified exist;

2. that the items specified will be found in the place to be searched;

3. that the offence alleged has been, or will be, (depending on the type of search

warrant being sought) committed;

4. that the items specified will afford evidence of the offence alleged; and

5. that the place to be searched is the location where the items are located.

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REASONABLE GROUNDS

A judge does not have to be satisfied that any of these elements, including the

requirement of an offence having been committed, has been established beyond a

reasonable doubt by the evidence contained in the information to obtain. Rather, the

question is whether or not the information to obtain establishes reasonable grounds

to believe. This requires a consideration of all of the evidence contained in the

information to obtain, i.e., the totality of the circumstances. It has been held that

there must exist a "credibly-based probability that an offence has been committed and

that there is evidence of it to be found in the place of the search" (see R. v. Al-Amiri,

2015 NLCA 37).

In R. v. Parsley, 2016 NLCA 51, the Court of Appeal indicated, at paragraph 10, that

the reasonable grounds standard “composes both a subjective prong and an objective

prong. In practice, that means that the officer swearing the ITO must have a

subjective belief that on the basis of the stated grounds, the search requested will

yield evidence respecting the commission of an offence and also that objective

assessment of the grounds justifies issuance of the warrant. The test is the same for

determining grounds for arrest, although the objective component has been applied

in a less exacting manner in reviewing grounds for arrest than in reviewing the

issuance of an ITO (R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.) at 750).”

The Court of Appeal noted in Parsley, that “the objective prong of the test has been

described in various ways by the Supreme Court” (at paragraph 11), but that in

“applying the standard, the reviewing judge must consider ‘the totality of the

circumstances’ set out in the ITO, and approach the task from a ‘holistic perspective

rather than a microscopic perspective’ which deconstructs the ITO and inspects each

piece of information in it” (at paragraph 13).

THE USE OF INFORMATION OBTAINED IN VIOLATION OF THE

CHARTER IN AN INFORMATION TO OBTAIN A SEARCH WARRANT

The Supreme Court of Canada held in R. v. Evans, [1996] 1 S.C.R. 8, that search

warrants based solely on information gleaned in violation of the Charter are invalid.

However, where the warrant was issued only partially on the strength of tainted

evidence, and partially on evidence that was properly obtained, the court must

consider whether the warrant would have been issued had the improperly obtained

facts been excised from the information sworn to obtain the warrant.

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In R. v. Grant, [1993] 3 S.C.R. 223, the Supreme Court held that "where the

information contains other facts in addition to those obtained in contravention of the

Charter, it is necessary for reviewing courts to consider whether the warrant would

have been issued had the improperly obtained facts been excised from the information

sworn to obtain the warrant." The Court ultimately concluded in Grant that the

search warrant that had been issued was valid because "even expunged of the

information gained through the warrantless perimeter searches, the information was

sufficient to sustain issuance of a search warrant under the test identified in Garofoli."

SOLICITOR-CLIENT PRIVILEGE

In R. v. A.B., 2014 NLCA 8, two Provincial Court Judges issued two production

orders “directing two telecommunications companies to produce cellular phone

records in one instance and residential landline telephone records in the second

instance pertaining to the respondent, A.B., a lawyer, during the course of a murder

investigation.” On application to the Supreme Court, Trial Division, an order of

certiorari quashing the two production orders was granted. An appeal was taken to

the Court of Appeal.

The Court of Appeal held, at paragraph 34, that “it is the nature of the

communications and the solicitor-client relationship that give rise to the need to

protect a possible claim of solicitor-client privilege and not simply a particular

physical location such as a lawyer’s office.” In addition, the Court of Appeal pointed

out, at paragraph 48, that the Lavallee “principles provide that the appropriate time

to give notice to legal counsel or the Law Society when a third party is about to

transfer potentially privileged documents or data to the police to enable oversight of

the seizure and sealing of the documents or data is prior to execution of the production

order. The police are not permitted to see any of the material that is the subject of a

production order before the court decides the claims of privilege in an inter partes

vetting process. Oversight at the execution of the production order by either the

lawyer or the Law Society representative is crucial to ensure the protection of

solicitor-client privilege.”

The Court of Appeal concluded that the Trial Division judge had “correctly

concluded that the Law Society ought to have been notified to permit a representative

to be present at the time of execution of the Telus Order. It was clear from the outset

of this case that the data generated from the respondent’s communication devices and

conversations was expected to be accessed by the police in order to aid the progress

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of a murder investigation and the identity of a fourth suspect was the main objective.

The nature of the data being sought was highly sensitive. Given that the orders

directly related to telephone devices belonging to lawyers, primarily to the

respondent, notification would properly be given to the Law Society.”

THE ROLE OF THE JUDGE IN THE ISSUING OF A SEARCH

WARRANT

A judge acts as an independent judicial authorizing officer and thus, when he or she

issues a search warrant, the judge is performing a judicial function. It has been held

that a judge is not compellable as regards "the process of adjudication" (see

Mackeigan v. Hickman, [1989] 2 S.C.R. 796), but may be compellable as regards

"administrative functions" (see R. v. Butler, 2014 NLTD(G) 36).

In R. v. Mackey, 2020 ONCA 466, it was held that a “judge issuing a warrant at first

instance must decide whether there are reasonable grounds to believe the statutory

preconditions for issuance of the warrant are met… By contrast, a reviewing judge is

not to decide whether he or she would have issued the warrant but, rather, is to

determine whether the ITO, as excised and amplified, provides sufficient credible and

reliable evidence upon which the issuing judge could be satisfied that there were

reasonable grounds to issue the warrant” (at paragraphs 51 and 54).

THE ROLE OF THE JUDGE IN

REVIEWING A CHALLENGED SEARCH WARRANT

Once a search warrant is issued and executed, it will often be the subject of challenge

and review. In R. v. Morelli, 2010 SCC 8, the Court indicated that in “reviewing the

sufficiency of a warrant application ‘the test is whether there was reliable evidence

that might reasonably be believed on the basis of which the authorization could have

issue’ (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54). The question

is not whether the reviewing court would itself have issued the warrant, but whether

there was sufficient credible and reliable evidence to permit a justice of the peace to

find reasonable and probable grounds to believe that an offence had been committed

and that evidence of that offence would be found at the specified time and place.”

The “trial judge’s role is to determine whether the order could have been granted

based on the record that was before the authorizing justice, as amplified on review,

not whether, in the view of the trial judge, the order should have been granted” (R. v.

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Perkins, 2021 BCCA 9, at paragraph 14).

The standard of review has been described as a "limited" one (see Re Times Square

Book Store and the Queen (1985), 21 C.C.C. (3d) 503 Ont. C.A.), at p. 514). If the

grounds are such that the justice "could have" issued the warrant, then the trial judge

should not interfere (see R. v. Araujo, at para. 51 and R. v. Campbell, [2011] 2 S.C.R.

549). In R. v. Whalen, 2015 NLCA 7, it was held that there “is a presumption of

validity regarding a search warrant. The burden is on the accused to displace that

presumption of validity.” The Court of Appeal indicated that in “reviewing whether

a Provincial Court judge properly issued a search warrant, a reviewing judge must

ask whether the accused has shown that there was no justifiable basis according to

law upon which the authorizing judge could have granted the warrant.”

AMPLIFICATION

It is not uncommon for the parties to seek to "amplify" the record on an application

for review. This may include evidence alleging that the police purposely misled the

issuing justice or that they acted in good faith (see R. v. Blizzard (2002), 163 C.C.C.

(3d) 55 (N.B.C.A.) and R. v. Wong, [2011] B.C.J. No. 965 (C.A.)). In R. v. Tang,

2016 ONCA 57, it was held that amplification “cannot be used to provide evidence

that was not known to the police at the time the ITO was sworn.”

In R. v. Morris, (1998), 134 C.C.C (3d) 539, the Nova Scotia Court of Appeal

described the principles which govern amplification, as follows (at pages 568-569):

1. The trial judge is to determine whether the justice of the peace could have

validly issued the warrant;

2. In conducting that review, the trial judge may hear and consider evidence

relevant to the accuracy of and motivation for the material included in the

Information to obtain a search warrant;

3. Fraudulent or deliberately misleading material in the Information does not

automatically invalidate the warrant. However, it may have this effect if the

reviewing judge concludes, having regard to the totality of the

circumstances, that the police approach to the prior authorization process was

so subversive of it that the warrant should be invalidated. In addition,

fraudulent and deliberately misleading material should be excised from

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consideration;

4. In assessing the validity of the warrant, the trial judge, generally, is entitled

to consider all evidence bearing on the existence in fact of reasonable and

probable cause shown to be in the knowledge of the police at the time the

warrant was sought. However, such evidence cannot be used if it was obtained

by unconstitutional means or (I am inclined to think) to amplify fraudulent or

intentionally misleading material in the Information to obtain.

APPLICATIONS TO CROSS-EXAMINE THE INFORMANT ON THE

CONTENTS OF THE INFORMATION TO OBTAIN

In R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, the Supreme Court of Canada

concluded that there is a "narrow window for cross-examination" of an affiant to an

application to intercept a private conversation.

In R. v. Green, 2015 ONCA 579, the Ontario Court of Appeal provided the following

summary of the considerations in determining if an accused person should be granted

leave to cross-examine an affiant on the contents of an information to obtain (at

paragraphs 34 to 36):

Cross-examination of the affiant will be allowed when the trial judge is

satisfied that there is a reasonable likelihood that the proposed cross-

examination will assist in determining whether the necessary grounds existed

for the issuance of the search warrant. The focus is on the reasonableness and

honesty of the affiant’s belief as to the existence of the requisite grounds, and

not on the ultimate accuracy of the information relied on by the affiant: Pires,

at paras. 41-43; Sadikov, at para. 40.

Motions to cross-examine affiants most often target specific, factual

allegations in the ITO that are central to the existence of the reasonable grounds

necessary to justify the granting of the warrant. The accused on the motion to

cross-examine, either by reference to other parts of the ITO, or extraneous

evidence (often material provided by Crown disclosure) attempts to

demonstrate that there is a reasonable likelihood that cross-examination of the

affiant on certain parts of the ITO will “undermine” the grounds upon which

the warrant was granted: see Pires, at paras. 68-69. Cross-examination may

“undermine” the grounds set out in the ITO either by contradicting information

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in the ITO or by adding information that was not in the ITO. In either case, the

honesty and/or reasonableness of the affiant’s grounds for believing that the

warrant should issue are the ultimate target of the cross-examination.

Sometimes the motion to cross-examine the affiant is made on a wider basis.

An accused may argue that the ITO contains statements that are deliberately

misleading and sufficiently significant to place the credibility of the entire ITO

in issue. Pires, at para. 63, holds that if there is a reasonable basis to believe

that an affiant has deliberately attempted to mislead the authorizing judge in

some part of the ITO, cross-examination should generally be allowed.

REVIEWING AN EDITED INFORMATION TO OBTAIN

If the original information to obtain was "sealed" pursuant to section 487.3 of the

Criminal Code, then the Crown will normally provide an edited copy of the

information to obtain the search warrant to the accused, if the accused has applied to

challenge the validity of the search warrant. Portions of the information to obtain

will have been blacked out by Crown counsel.

Section 487.3(4) of the Criminal Code allows for an application to be made to

"terminate the order or vary any of its terms." It does not, however, set out a

procedure which is to be followed as regards such applications.

In R. v. Shivrattan, 2017 ONCA 23, the Ontario Court of Appeal described the nature

of the procedure to be followed when an edited information to obtain is challenged,

in the following manner (at paragraph 11):

...When the Crown invokes “Step Six”, the trial judge gives defence counsel a

judicial summary of the redacted parts of the ITO. Defence counsel, using that

summary, the redacted ITO and whatever additional information it has

available to it—such as Crown trial disclosure or preliminary inquiry

transcripts—attempts to convince the trial judge that the contents of the

unredacted ITO, which defence counsel has not seen, could not justify the

issuance of the search warrant: Garofoli, at p. 1461; and Reid, at paras. 84-86.

Thus, resort has been made to the procedure developed by the Supreme Court of

Canada in R. v. Garofoli for reviewing edited applications to intercept private

conversations. In R. v. Perkins, 2021 BCCA 9, this procedure was summarized in

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the following manner (at paragraphs 17 to 20):

Warrants are obtained on an ex parte basis, frequently relying on information

provided by confidential informants.

The dilemma when reviewing the basis for a warrant is how to protect three

interests: enforcing the law; informer privilege, which is designed to protect a

confidential informant’s safety; and an accused’s right to make full answer and

defence: R. v. Crevier, 2015 ONCA 619 at para. 1. In Garofoli, the Supreme

Court of Canada established a six-step editing procedure to address that

dilemma.

The Garofoli procedure can be briefly summarized as follows. Initially, the

information produced to the defence and the court on review of the warrant can

be edited to protect the identity of the confidential informant. If, after redaction

of the confidential information, the reviewing judge considers the remaining

information to be insufficient to support the warrant, the Crown may apply to

produce some of the previously redacted material to the judge. This is “step

six” of the Garofoli procedure. The reviewing judge will only consider the

newly unredacted material if satisfied that a judicial summary of it has been

provided to the defence that provides the defence with enough knowledge to

still be able to challenge it. It is this procedure that was followed here, and the

appellant does not suggest it was done incorrectly.

When considering whether information provided by a confidential informant,

together with other information, meets the “reasonable grounds for belief”

standard, the reviewing judge must consider whether the ITO provides

sufficient details to be able to assess the informant’s reliability. In R. v. Debot,

[1989] 2 S.C.R. 1140 at p. 1168, Wilson J. identified three criteria as the focus

of assessing an informant’s evidence: the information must be compelling; it

must come from a credible source; and it must be corroborated by police

investigation prior to being relied on. The consideration of the informant’s

credibility can include evidence from the police as to the quality of the

information received in the past from this informant and the motives of the

informant. None of these factors form a separate test, and weaknesses in one

area may be offset by strengths in another, but these factors are part of the

“totality of the circumstances” that must meet the standard of reasonable

grounds for belief.

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DESCRIBING THE OFFENCE

The information to obtain must contain sufficient detail so that an offence is clearly

identified and though the information to obtain does not have to contain a section

number, this is the preferable method of describing the offence (see R. v. Dombroski

(1985), 18 C.C.C. (3d) 164 (Sask. C.A.)). In R. v. Smith (2004), 256 Sask. R. 45

(Q.B.), the Court stated:

...the various elements of an offence must be sufficient, even in a warrant, to

identify, to a person confronted with a warrant to search his dwelling, the

offences in respect of which the warrant authorizes the search.

DESCRIBING THE PLACE TO BE SEARCHED

The information to obtain must be very specific and exact as to the place to be

searched. The search warrant should not leave any room for interpretation by the

officer executing it. It should clearly state the exact place to be searched. If it "fails

to accurately describe the premises to be searched...then it will be invalid (see Re

McAvoy (1971), 12 C.R.N.S. 56 (N.W.T. Terr. Ct)).

In R. v. Ting, 2016 ONCA 57, the Ontario Court of Appeal indicated, at paragraphs

48 and 49, that an “adequate description of the place to be searched is a fundamental

component of a search warrant. Its importance cannot be overstated...Without an

adequate description of the premises, the issuing justice of the peace would not be

assured that he or she is not granting too broad an authorization, or an authorization

without proper reason. The police officers called on to execute the search warrant

would not know the scope of their search powers. Further, those subject to the warrant

would be left in doubt as to whether there is valid authorization for those searching

their premises.” The Court of Appeal indicated that “a warrant that does not

adequately describe the place to be searched is invalid.” As to what constitutes an

adequate description, the Court of Appeal held that it “will vary with the location to

be searched and the circumstances of each case” (at paragraph 51):

Just what constitutes an adequate description will vary with the location to be

searched and the circumstances of each case. With respect to a multi-unit,

multi-use building, as seen in this case, it is not enough to simply provide a

street address that distinguishes the building from others. The description must

adequately differentiate the units within the building, as those in a multi-unit

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dwelling have the same expectation of privacy as those in a single-unit

dwelling.

EFFECT OF THE WRONG ADDRESS

On occasion, the police will discover, prior to executing a search warrant, that it

contains the wrong address. If this occurs, note that a search warrant cannot be

amended (see R. v. Sieger (1982), 65 C.C.C. (2d) 449 (B.C.S.C.)). A search warrant

authorizes a single entry into the premises, though it can allow for entry to take place

over an extended period of time (see R. v. Finlay and Grellette (1985), 23 C.C.C.

(3d) 48 (Ont. C.A.) at p.63). Therefore, in such a circumstance, a second warrant has

to be obtained. The information to obtain the second warrant should refer to the fact

that a warrant had been obtained and that it was subsequently determined to have

contained the wrong address.

In R. v. Jamieson (1989), 48 C.C.C. (3d) 287 (N.S.C.A.), the police obtained a search

warrant to search a residence on a specified date. The search, however, did not

proceed on that date. Two days later, the officer who had obtained the original

warrant, attended on the justice who had issued it. The justice "amended" the warrant

to permit its execution on that day. The Nova Scotia Court of Appeal, at page 296,

concluded that this should not have occurred:

... the search warrant by its terms was to be executed on December 11th. It

expired at midnight on that day. There was therefore no warrant to amend on

December 13th. The only recourse the police had was to apply by an

information or oath for a new warrant to search the appellant's residence. This

they did not do.

DESCRIBING THE ITEMS TO BE SEARCHED FOR

The information to obtain should contain sufficient current information so that you

are satisfied that the item to be searched for is now at the location specified. The

information to obtain and the search warrant must clearly describe the items to be

seized so that the issuing judge; the police; and the person whose premises are to be

searched, all know what items fall within the scope of the search warrant.

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OVERBREATH AND VAGUENESS

The search warrant should attempt to be as specific as possible as regards the item(s)

to be seized. It should generally avoid such as phrases as:

i. "any other related items";

ii. "any other related documents"; or

iii. "any other relevant information" (see R. v. B.(J.E.) (1989), 52 C.C.C. (3d)

224 (N.S.C.A.)).

THE RECEIVING OF ADDITIONAL EVIDENCE

NOT CONTAINED IN THE INFORMATION TO OBTAIN

In R. v. Araujo, [2000] 2 S.C.R. 992, the Supreme Court of Canada suggested that

judges should not be reluctant to ask an affiant questions when considering whether

or not to issue an authorization to intercept private communications.

PROVIDING ADVICE TO POLICE

It is quite appropriate for a judge to advise an officer, after having read a information

to obtain, that additional information is required before the search warrant will be

issued (see R. v. Clark, 2015 BCCA 488). However, this additional information

should not be received orally and the warrant then issued. The officer should be

advised to prepare a new information to obtain with the additional evidence included

or have additional affidavits prepared and attached.

To avoid placing yourself in the situation where additional evidence that is not

included in the information to obtain is presented orally, ask the officer to leave the

information to obtain with one of the Court’s clerks. Try to avoid reading the material

in the presence of the officer and do not allow yourself to be hurried or rushed. After

you have reviewed the information to obtain the search warrant, if you are satisfied

that it is appropriate to issue the search warrant requested, have the clerk telephone

the officer and ask her or him to come back. If you are not satisfied the search warrant

sought should be issued, write this and your reasons on the information to obtain and

have the clerk return it to the officer. Do not talk to the officer about your conclusions,

as this may constitute the receiving of information which has not been recorded or

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provided under oath.

Finally, if you decide it is appropriate to issue the search warrant, ensure that:

-the information to obtain has been sworn to;

-you have signed the warrant (I recommend that you initial each page); and

that

- the warrant indicates the time period in which it is to be executed.

I would recommend the following twelve steps to those issuing search warrants:

1. have the sworn information to obtain taken from the officer by a court clerk

and sworn to at that time before the clerk;

2. have the clerk obtain a telephone number from the officer;

3. do not allow the officer to sit at your desk or enter your office;

4. do not speak to the officer about the contents of the information to obtain in

person or on the telephone;

5. review it and take as much time as you need;

6. sign the search warrant it or send it back;

7. if you decide to sign the warrant, ensure the information to obtain has been

sworn to;

8. if you return it to the officer, through the court clerk, write on the information

to obtain what additions/deletions are necessary, but do not advise the officer

how it should be drafted (a fine line at times);

9. do not speak to the officer about any changes you have indicated on the face

of the information to obtain;

10. do not receive any additional information which is not included in writing

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and under oath in the information to obtain;

11. when the information to obtain has been redrafted and returned to you,

follow the same procedure; and

12. if you sign the search warrant and it is determined that here has been an

error (in the date or the place to be searched, etc.) do not make any amendments

or changes to the information to obtain or the search warrant. A search warrant

cannot be amended after a search warrant has been issued. A new information

to obtain must be drafted.

THE USE OF HEARSAY

A judge can rely on hearsay as a basis to issue a search warrant. However, the

information to obtain should clearly state how the hearsay was gathered and there

should be an indication of its degree of reliability (examples include reliance on

statements, police reports, other police officers, etc.). This is particularly so when

the police refer to confidential sources. When considering hearsay evidence, keep in

mind that you must be satisfied that the warrant should be issued. Therefore, be

careful of statements which do not provide a basis for their conclusion. For instance,

it is common to see such phrases as "in the officer's opinion", etc. The officer may

be satisfied that the hearsay is reliable, however you must make an independent

determination. You must ask yourself such questions as:

-what is the opinion based upon;

-why was this conclusion reached; and

-is the hearsay evidence corroborated or confirmed in any fashion, etc. (see R.

v. Fletcher (1994), 140 N.S.R. (2d) 254 (S.C.)).

THE USE OF CONFIDENTIAL INFORMANTS/SOURCES

A search warrant can be issued on the basis of confidential informants (or "sources")

and their identities should not be disclosed. However, the information to obtain must

contain sufficient information so that the issuing judge can be satisfied that the

information given by the confidential source has a sufficient degree of reliability for

the warrant to be issued.

15

Normally this will include:

-examples of past information which leads the affiant to believe that the

sources can be believed;

-a description of the source of knowledge of the informer, to establish that the

source's information is reliable; and/or

-reference to any evidence confirming or corroborating the information

provided by the source (in R. v. Wiley, (1993), 81 C.C.C. (3d) 161, the Supreme

Court of Canada found such corroboration in "police reconnaissance" (at p.

170-171).

A search warrant should not be issued on the sole basis of a statement by an officer

that he or she "has received information from a confidential and reliable source", nor

upon the officer's statement that in his or her view the source is reliable. As stated

earlier, it is the judge who must be satisfied. Therefore, the information to obtain

must indicate, in such circumstances, why the source can be viewed as reliable. It

should, for instance, refer to any evidence which corroborates the informer's

information and any past examples of the informer having provided reliable

information. It should be clearly indicated whether the informer's information is

based on personal knowledge or speculation or conjecture.

In R. v. Garofoli (1988), 60 C.C.C. (3d) 161, the Supreme Court of Canada

summarized the principles which apply when a judge is asked to issue a search

warrant on the basis of information given to the police by confidential sources, as

follows:

(i) Hearsay statements of an informant can provide reasonable and probable

grounds to justify a search. However, evidence of a tip from an informer, by

itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to the totality of the

circumstances. There is no formulaic test as to what this entails. Rather, the

court must look to a variety of factors including:

(a) the degree of detail of the tip;

16

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or

confirmation from other investigative sources.

In R. v. MacDonald, 2012 ONCA 244, the Ontario Court of Appeal, at paragraph 7,

indicated that when the application for a search warrant is “based largely on

information coming from a confidential informant”, a judge must make three

inquires:

·Was the information predicting the crime compelling?

·Was the source of the information credible?

·Was the information corroborated by the police before conducting the search?

The Ontario Court of Appeal noted in MacDonald that these are “not watertight

inquiries. It is the ‘totality of the circumstances’ that must meet the reasonable

probability standard.”

CRIME STOPPERS TIPS

An information to obtain a search warrant can properly contain a crime stoppers tip.

However, since these are usually anonymous, they will not normally be enough,

without other evidence, to justify the issuance of a search warrant because the nature

of such tips is such that their reliability, standing alone, cannot be assessed (see R. v.

Leipart (1997), 112 C.C.C. (3d) 385 (S.C.C.)).

TIME OF SEARCH

All search warrants should indicate the time period in which their execution is

authorized.

In R. v. Saint, 2017 ONCA 491, the police obtained a search warrant pursuant to

section 11 of the Controlled Drugs and Substances Act which was used to search the

accused’s residence. The search warrant was issued at 12:45 p.m. on April 10, 2014.

It was executed by the police the same day, approximately seven hours later. The

police seized a quantity of drugs. The search warrant authorized “any peace officer,

17

at any time” to enter the accused’s residence. At trial, the accused sought exclusion

of the evidence obtained as a result of the execution of the search warrant. He argued

that the warrant was invalid because it was “temporally unlimited, ” i.e. it authorized

a search to be conducted “on any date in the future, regardless of whether it took place

days after issuance or years later, in the sole discretion of the police.” The trial judge

rejected this argument and the accused was convicted. He appealed from conviction.

The Ontario Court of Appeal described the issue raised by the appeal as being:

Is a search warrant issued under the Controlled Drugs and Substances Act, S.C.

1996, c. 19 (“the CDSA”), invalid if it does not specify a date – or range of

dates – for its execution? Can a date of execution nevertheless be implied?

The Ontario Court of Appeal noted that it there “is an implied requirement that

warrants be executed within a reasonable time of being issued...Warrants that are not

executed within a reasonable time, whether because of delayed execution or because

an unreasonable time frame is expressly authorized by the warrant, have long

attracted judicial disapprobation” (at paragraph 9). The Court of Appeal held that

unlike a section 487 Criminal Code search warrant, “a warrant issued under s. 11 of

the CDSA does not require any additional grounds to justify night-time execution,

and no time of execution need be specified...The trial judge was correct to have

rejected the characterization of the warrant as expressly non-expiring” (at paragraphs

16 and 17).

The Court of Appeal concluded that “the trial judge made no error in concluding that

the warrant contained an implied date of execution, which was the date that it was

issued. The warrant was facially valid. No other basis was raised for challenging the

warrant under s.8. That is sufficient to dispose of this appeal” (at paragraph 21).

SEARCHES AT NIGHT

A search warrant, issued under section 487 (a search warrant to search a building,

place or receptacle), 487.1 (telewarrants) or section 462.32 (proceeds of crime) of the

Criminal Code, can only be executed during the daytime hours (6:00 a.m. to 9:00

p.m.) as a result of section 488(b) of the Criminal Code, unless the judge has

specifically authorized otherwise. Such an authorization requires that the information

to obtain contain reasonable grounds indicating why it is necessary to conduct a

search outside of these hours. In R. v. Gould's Fisheries Ltd., [2002] N.J. No. 135

18

(P.C.), it was held that section 488(b) of the Criminal Code applied to search warrants

issued under provincial legislation.

In contrast, section 11 of Controlled Drugs and Substances Act states that a justice

can issue a search warrant allowing the police to search a place at anytime. In R. v.

Saunders (2003), 181 C.C.C. (3d) 268 (N.L.C.A.), it was held that section 488(b)

does not apply to search warrants issued pursuant to the Controlled Drugs and

Substances Act.

EXTENDED PERIODS

A judge can grant a search warrant to be executed over a period of time (days, for

instance) if the information to obtain establishes the necessity for such a time period

being granted. This could include evidence that the place to be searched is larger

than normal or that the search will be so detailed, that a number of days will be

necessary to complete it.

In R. v. Paris, 2015 ABCA 33, the police obtained a search warrant to search for

drugs. The information to obtain the search warrant asked for a search warrant that

could be executed at any time during a forty-eight hour period. The Alberta Court

concluded, at paragraph 15, that “the trial judge erred in finding the warrant failed to

comply with s. 11 of the Controlled Drugs and Substances Act. This was not a case

where the police could not satisfy the prerequisites for a search warrant but wanted

one in hand to execute if and when, in their opinion, it would be useful. Instead, as

the trial judge noted, the ITO met all of the preconditions of s. 11 and further, the

terms of the warrant, including the 48-hour window in which to execute it, were

appropriate.”

SUCCESSIVE APPLICATIONS

Can a police officer ask a second judge to issue a search warrant when such a request

has been denied by an earlier justice or judge? The answer to this question

is yes (see R. v. Strussi, 2014 BCCA 195), but the information to obtain should:

-indicate that an earlier application had been made;

-indicate that it had been rejected;

-indicate why it had been rejected;

19

-indicate what additional evidence is being presented; and

-indicate why the second application is not being made to the justice that

rejected the first one.

Note that section 487.1(4)(d) of the Criminal Code requires that an information to

obtain a telewarrant contain 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.”

CHALLENGING THE VALIDITY OF A SEARCH WARRANT

As a general rule, search warrants must be challenged before the trial judge (see Re

Zevallos and The Queen (1987), 37 C.C.C. (3d) 79 (Ont. C.A.), though they can be

subjected to challenge in the Supreme Court prior to charges being laid by way of

certiorari and/or section 24(1) of the Charter (see Canadian Broadcasting Corp. v.

Newfoundland and Labrador (2007), 207 Nfld. & P.E.I.R. 117 (N.L.C.A.) and BGI

Atlantic Inc. v. Canada (Minister of Fisheries and Oceans (2004), 241 Nfld. &

P.E.I.R. 206 (S.C.), at paragraph 49).

http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?service=citation&langcountry=CA&risb=21_T5972041479&A=0.6165184472533768&linkInfo=F%23CA%23CCC3%23year%251987%25page%2579%25decisiondate%251987%25vol%2537%25sel2%2537%25sel1%251987%25&bct=A

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20

CHECKLIST- THE INFORMATION TO OBTAIN

(GENERAL PRINCIPLES)

IT MUST BE IN WRITING AND UNDER OATH.

IT MUST DESCRIBE THE OFFENCE WHICH HAS BEEN COMMITTED (OR

WILL BE COMMITTED, DEPENDING ON THE TYPE OF SEARCH WARRANT

BEING SOUGHT) AND WHY THE INFORMANT BELIEVES SUCH AN

OFFENCE HAS BEEN COMMITTED.

IS THERE REFERENCE TO A STATUTE AND A SPECIFIC SECTION

NUMBER?

IT MUST DESCRIBE EXACTLY, THE PLACE TO BE SEARCHED.

IS THE PLACE IDENTIFIED CLEARLY, APARTMENT NUMBER

STREET, ETC.?

ARE THE PLACES SET OUT IN THE INFORMATION TO OBTAIN

AND THE SEARCH WARRANT IDENTICAL?

IT MUST DESCRIBE WHAT THE INFORMANT BELIEVES HE/SHE WILL

FIND THERE.

IT MUST LIST THE ITEMS SOUGHT TO BE SEARCHED FOR.

IT MUST SET OUT THE GROUNDS UPON WHICH THE INFORMANT

BELIEVES THAT THE ITEMS SOUGHT ARE AT THE PLACE TO BE

SEARCHED.

IT MUST INDICATE WHY THE INFORMANT BELIEVES THAT THE ITEMS

TO BE SEARCHED FOR WILL AFFORD EVIDENCE OF AN OFFENCE.

YOU MUST CHECK TO ENSURE THAT THE ASSERTIONS MADE IN THE

INFORMATION TO OBTAIN ARE CONNECTED TO EVIDENCE WHICH

PROVIDES REASONABLE GROUNDS TO BELIEVE THAT THEY EXIST.

HAS OVERBREATH & VAGUENESS BEEN AVOIDED?

21

IS THE INFORMATION CURRENT?

TIME OF SEARCH

IS THE TIME FOR THE SEARCH SPECIFIED?

HAS AN EXTENDED PERIOD BEEN REQUESTED AND IF SO, HAS A

REASON FOR THE REQUEST BEEN INCLUDED IN THE INFORMATION TO

OBTAIN THE SEARCH WARRANT?

IS IT DURING THE DAYTIME (6:00 A.M. - 9:00 P.M.) OR THE NIGHTTIME?

IF AT NIGHT, AND IT IS A TYPE OF SEARCH WARRANT REFERRED TO

IN SECTION 488 OF THE CRIMINAL CODE, DOES THE INFORMATION TO

OBTAIN ESTABLISH THE NECESSITY OF A NIGHTTIME SEARCH?

ADDITIONAL EVIDENCE

HAVE YOU REFRAINED FROM ASKING ANY QUESTIONS OR

RECEIVING ANY INFORMATION WHICH IS NOT CONTAINED IN THE

INFORMATION TO OBTAIN THE SEARCH WARRANT?

HEARSAY EVIDENCE

DOES THE INFORMATION TO OBTAIN REFER TO HEARSAY EVIDENCE?

IF SO,

DOES IT REFER TO THE SOURCE OF THE HEARSAY;

OR

CONFIDENTIAL SOURCES?

IF THE LATTER, DOES IT INDICATE THE BASIS FOR THE INFORMATION

PROVIDED TO THE POLICE BY THE CONFIDENTIAL SOURCES?

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IS IT FIRST HAND INFORMATION, OR BASED UPON

SPECULATION AND CONJECTURE?

HAS THIS SOURCE BEEN USED BY THE POLICE BEFORE?

IF SO, HAS THE SOURCE BEEN PROVEN TO HAVE PROVIDED RELIABLE

INFORMATION IN THE PAST?

IS THE SOURCE'S INFORMATION CORROBORATED IN SOME FORM OR

FASHION?

CRIME STOPPERS TIPS

IF THE INFORMATION TO OBTAIN IS BASED UPON A CRIME STOPPERS

TIP, IS THAT TIP CONFIRMED OR CORROBORATED IN SOME FASHION?

IS THERE ANY BASIS FOR THE SEARCH WARRANT TO BE ISSUED

OTHER THAN THE CRIME STOPPERS TIP?

ONE LAST CHECK

HAS IT BEEN SIGNED BY THE OFFICER AND SWORN TO?

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THE SEARCH WARRANT CHECKLIST

(GENERAL PRINCIPLES)

DO YOU HAVE JURISDICTION TO ISSUE THE WARRANT?

ENSURE THAT YOU HAVE SIGNED IT.

DOES THE WARRANT:

SUFFICIENTLY IDENTIFY THE PLACE TO BE SEARCHED AND IS

IT THE SAME PLACE REFERRED TO IN THE INFORMATION TO

OBTAIN?

STATE THE OFFENCE COMMITTED?

LIST THE ITEMS TO BE SEARCHED FOR?

IDENTIFY THE "PUBLIC OFFICER(S)" WHO ARE TO CONDUCT THE

SEARCH (IF A PUBLIC OFFICER HAS SWORN TO THE INFORMATION

TO OBTAIN AND THE SECTION REQUIRES IT?).

SPECIFY THE TIME IN WHICH THE SEARCH AUTHORIZED IS TO

TAKE PLACE?

IF AN EXTENDED PERIOD OF TIME TO SEARCH IS

REQUESTED, DID THE INFORMATION TO OBTAIN CONTAIN A

REASONABLE BASIS FOR THE EXTENDED TIME PERIOD?

ALLOW A SEARCH TO BE CONDUCTED AT NIGHT TIME?

IF SO, AND IF IT IS A TYPE OF WARRANT LISTED IN

SECTION 488 OF THE CRIMINAL CODE, DID THE

INFORMATION TO OBTAIN CONTAIN REASONABLE

GROUNDS TO ALLOW A NIGHT TIME SEARCH?

IS THE MANDATORY REQUIREMENT FOR A RETURN TO A

JUSTICE BEEN INCLUDED?

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SPECIFIC SEARCH WARRANTS

SECTION 487 OF THE CRIMINAL CODE

A section 487 Criminal Code search warrant can be issued by a justice or a provincial

court judge. It can be applied for by anyone, but it can only be issued to "a peace

officer or public officer." A “peace officer” is defined very broadly in section 2 of

the Criminal Code. Its definition includes:

a police officer, police constable, bailiff, constable, or other person employed

for the preservation and maintenance of the public peace or for the service or

execution of civil process.

A “public officer” is defined as follows:

“public officer" includes:

(a) an officer of customs or excise,

(b) an officer of the Canadian Forces,

(c) an officer of the Royal Canadian Mounted Police, and

(d) any officer while the officer is engaged in enforcing the laws of

Canada relating to revenue, customs, excise, trade or navigation.

A “justice” is defined in section 2 of the Criminal Code as follows:

justice means a justice of the peace or a provincial court judge...

If a section 487 search warrant is issued to a peace officer, the officer does not have

to be specifically named in the search warrant. If issued to a public officer, he or she

does have to be named in the warrant.

A section 487 search warrant is limited to allowing for a search of the following:

-a building;

-a receptacle; or

-a place.

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A section 487 search warrant cannot be used to search a person. Contrast this

limitation with a section 395(1) Criminal Code, "valuable minerals" search warrant.

This search warrant, which can be issued by a justice, allows for the police to be given

authorization to search "any...persons mentioned in the information" to obtain the

search warrant. In addition, a general warrant (section 487.01) can also authorize the

search of a person as long as it does not interfere "with the bodily integrity of any

person" (section 487.01(2)).

Section 487 does not indicate that the affiant must be a peace officer, as does for

instance, search warrant sections 117.04, 395, 487.1 and 529.1 of the Criminal Code.

However, a section 487 search warrant can only be executed by a "peace officer or a

public officer.” In Carino v. Casey, [1997] N.J. No. 268 (N.L.S.C.), a Provincial

Court Judge issued a search warrant upon application by counsel for the International

Fund for Animal Welfare. Mr. Justice Barry, in quashing the warrant, stated:

...there are good policy reasons for ensuring the issuance of search warrant

authorizations to private individuals be done only in exceptional

circumstances, where those circumstances have been clearly submitted to the

issuing justice and the issuing justice has addressed them in the exercise of his

discretion.

Section 487 of the Criminal Code, unlike section 487.05 of the Criminal Code and

section 11 of the Controlled Drugs and Substances Act, does not require that the

application for the search warrant be made on an ex parte basis. Therefore, it appears

that a judge, presented with an application for a section 487 warrant by a private

citizen, could require that the Attorney General be given notice of the application and

an opportunity to be heard.

A section 487 search warrant must specify:

-the date the search is to be conducted (it can be over a period of time, see R.

v. Genest (1989), 45 C.C.C. (3d) 305 (S.C.C.));

-the location of the building, receptacle, or place which is to be searched (the

address for instance);

-the items to be searched for;

26

-the offence(s) alleged to have been committed; and

-that any items seized be brought before a justice or that a section 489.1

Criminal Code report be filed [in R. v. Garcia-Machado, 2015 ONCA 569, it

was held that a failure to file a section 489.1 report constitutes a violation of

section 8 of the Charter]

In R. v. Campbell, 2010 ONCA 588, the nature of the type of evidence which can be

sought through a section 487 search warrant was considered and the Ontario Court of

Appeal concluded:

Before applying the standard to this particular case, I make two

observations. First, the grounds for the warrant to search the respondent’s

room did not have to be restricted to those grounds for believing that the

evidence to be found would incriminate him. The evidence to be found could

incriminate any person. A general search warrant issued pursuant to s. 487 the

Criminal Code authorizes the police to search for “evidence with respect to the

commission of an offence”. Second, it is not relevant whether either of the

other tenants may have had backgrounds or circumstances that made them

more suspect of being involved in the offence than the respondent. The only

question for the reviewing court is whether the justice of the peace could have

issued the warrant to search the respondent’s room.

THE INFORMATION TO OBTAIN A SECTION 487 SEARCH WARRANT

The information to obtain a section 487 search warrant must be under oath and in

form one. It must contain sufficient information to satisfy the judge that there are

reasonable grounds to believe:

i. that an offence under the Criminal Code or other federal statute has been or

is suspected to have been committed (not anticipated), even if the person is

unknown;

ii. that in a building, receptacle or place (not on a person);

iii. is anything which:

a. will constitute evidence of a specified offence;

or

27

b. will reveal the whereabouts of a person believed to have committed

the offence;

or

c. is offence-related property;

or

d. is intended to be used for the purpose of committing an offence

against the person and for which a person may be arrested without

warrant.

Therefore, a section 487 warrant cannot be issued for anticipated offences, i.e.,

offences which have not occurred, but which the police believe will occur. In

contrast, a “general warrant” (section 487.01) does allow for the issuing of a search

warrant in such circumstances.

In Canadian Oxy Limited Canada (1999), 133 C.C.C. (3d) 426, the Supreme Court

of Canada, defined this prerequisite in very broad terms:

Anything that is relevant or rationally connected to the incident under

investigation, the parties involved and their potential culpability falls within

the scope of the warrant.

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THE INFORMATION TO OBTAIN A SECTION 487 WARRANT

CHECKLIST

THE INFORMATION TO OBTAIN:

MUST BE UNDER OATH AND IN FORM 1.

IT MUST SATISFY THE JUSTICE THAT THERE ARE "REASONABLE

GROUNDS" TO BELIEVE THAT:

IN A BUILDING;

OR

A RECEPTACLE;

OR

A PLACE (INCLUDES VEHICLES BUT NOT PEOPLE);

THERE IS ANYTHING ON OR IN RESPECT OF WHICH ANY OFFENCE HAS

BEEN OR IS SUSPECTED TO HAVE BEEN COMMITTED (NOT WILL BE

COMMITTED IN THE FUTURE);

OR

ANYTHING THAT WILL AFFORD EVIDENCE WITH RESPECT TO THE

COMMISSION OF AN OFFENCE;

OR

WILL REVEAL THE WHEREABOUTS OF A PERSON WHO IS BELIEVED

TO HAVE COMMITTED AN OFFENCE;

OR

ANYTHING THAT IS INTENDED TO BE USED FOR THE PURPOSE OF

COMMITTING AN OFFENCE "AGAINST THE PERSON" FOR WHICH A

PERSON MAY BE ARRESTED WITHOUT A WARRANT;

29

OR

ANY "OFFENCE-RELATED PROPERTY."

30

THE SECTION 487 SEARCH WARRANT CHECKLIST

AUTHORIZES A PEACE OFFICER OR PUBLIC OFFICER TO SEARCH:

A BUILDING;

A RECEPTACLE;

OR

A PLACE,

FOR:

ANYTHING ON OR IN RESPECT OF WHICH ANY OFFENCE HAS

BEEN OR IS SUSPECTED TO HAVE BEEN COMMITTED (NOT WILL

BE COMMITTED IN THE FUTURE);

OR

ANYTHING THAT WILL AFFORD EVIDENCE WITH RESPECT TO

THE COMMISSION OF AN OFFENCE;

OR

WILL REVEAL THE WHEREABOUTS OF A PERSON WHO IS

BELIEVED TO HAVE COMMITTED AN OFFENCE;

OR

ANYTHING THAT IS INTENDED TO BE USED FOR THE PURPOSE

OF COMMITTING AN OFFENCE "AGAINST THE PERSON" FOR

WHICH A PERSON MAY BE ARRESTED WITHOUT A WARRANT;

OR

ANY "OFFENCE-RELATED PROPERTY."

31

AND

TO BRING THE SEIZED ITEM BEFORE A JUSTICE OR MAKE A

SECTION 489.1 CRIMINAL CODE REPORT.

PUBLIC OFFICER

IF ISSUED TO A PUBLIC OFFICER, THE OFFICER MUST BE NAMED IN

THE WARRANT.

32

TRACKING WARRANTS

(SECTION 492.1)

The enactment of the Protecting Canadians from Online Crimes Act, S.C. 2014, Ch,

C-13, on March 9, 2015, enacted significant changes to the Criminal Code including

changes to production orders and tracking warrants. The new scheme creates two

types of tracking warrants:

(1) a tracking warrant for “transactions and things (section 492.1(1)); and

(2) a tracking warrant for “individuals” (section 492.1(2)).

Specified definitions apply to both types of tracking warrants.

“Tracking data” and “tracking device” are defined in section 492.1(8) in the

following manner:

“tracking data” means data that relates to the location of a transaction,

individual or thing.

“tracking device” means a device, including a computer program within the

meaning of subsection 342.1(2), that may be used to obtain or record tracking

data or to transmit it by a means of telecommunication.

“Computer program” is defined in section 342.1(2) as follows:

“computer program” means computer data representing instructions or

statements that, when executed in a computer system, causes the computer

system to perform a function.

(1) Transactions and Things:

Section 492.1(1) allows a justice or judge to issue a warrant authorizing a peace

officer or a public officer to obtain “tracking data by means of a tracking device.”

In order to issue a tracking warrant for a transaction or thing, the justice or judge must

satisfied by information on oath that there are “reasonable grounds to suspect” that

an offence “has been or will be committed” and that “tracking the location of one or

more transactions or the location or movement of a thing, including a vehicle, will

33

assist in the investigation of the offence.”

(2) Individuals:

Section 492.1(2) also allows a justice or judge to issue a warrant authorizing a peace

officer or a public officer to obtain “tracking data by means of a tracking device.”

However, this provision applies to individuals and contains a higher threshold test.

Section 492.1(2) requires the justice or judge to be satisfied by information on oath

that there are “reasonable grounds to believe” that an offence has been or will be

committed and that tracking “an individual’s movement by identifying the location

of a thing that is usually carried or worn by the individual will assist in the

investigation of the offence.”

Principles Applicable to Both Types of Tracking Warrants:

Both types of tracking warrants authorize an officer “to install, activate, use,

maintain, monitor and remove the tracking device, including covertly” (see section

492.1(3)) and to contain conditions for their execution (see section 492.1(4)).

Section 492.1(5) limits the validity of both warrants to “the period specified in it as

long as that period ends no more than 60 days after the day on which the warrant is

issued” (or one year if the offence is alleged to have been committed under (a)

sections 467.11 to 467.13; (b) for the benefit a criminal organization; or (c) a

terrorism offence).

The covert removal of a tracking device can be authorized pursuant to section

492.1(7).

TELEWARRANTS:

Section 492.1 does not make any reference to a tracking warrant being obtained by

telewarrant.

34

THE INFORMATION TO OBTAIN A TRACKING WARRANT

(TRANSACTIONS AND THINGS) CHECKLIST

(SECTION 492.1(1))

THE INFORMATION TO OBTAIN THE TRACKING WARRANT:

MUST BE IN WRITING AND UNDER OATH;

AND

ESTABLISH THAT THERE ARE REASONABLE GROUNDS TO SUSPECT

THAT AN OFFENCE:

HAS BEEN COMMITTED;

OR

WILL BE COMMITTED;

AND

THAT TRACKING THE LOCATION OF A TRANSACTION OR

THING WILL ASSIST IN THE INVESTIGATION OF AN OFFENCE.

PEACE OFFICER/PUBLIC OFFICER

CAN BE APPLIED FOR BY A PEACE OFFICER OR A PUBLIC OFFICER.

35

THE TRACKING WARRANT (TRANSACTIONS AND THINGS) CHECKLIST

(SECTION 492.1(1))

A TRACKING WARRANT (TRANSACTIONS AND THINGS) CAN BE ISSUED

BY A JUSTICE OR JUDGE.

IT CAN AUTHORIZE THE:

INSTALLATION;

MAINTAINING;

ACTIVATION; AND/OR

REMOVAL OF A TRACKING DEVICE,

IN RELATION TO:

ANY TRANSACTION OR THING

IF IT WILL ASSIST IN THE INVESTIGATION OF THE OFFENCE.


CAN BE ISSUED TO A PEACE OFFICER OR A PUBLIC OFFICER.

TIME LIMITS

MAXIMUM SIXTY (60) DAYS AT A TIME (ONE YEAR FOR OFFENCES UNDER

SECTIONS 567.11 TO 467.13; CRIMINAL ORGANIZATION OFFENCE; OR

TERRORISM OFFENCE).

CONDITIONS

CAN CONTAIN CONDITIONS THE JUSTICE OR JUDGE CONSIDERS

APPROPRIATE.

36

APPLICATION TO REMOVE THE TRACKING DEVICE CHECKLIST

AFTER EXPIRY OF WARRANT;

APPLICATION MUST BE IN WRITING;

SUPPORTED BY AFFIDAVIT; AND

MADE TO THE JUSTICE WHO ISSUED THE TRACKING WARRANT OR ANY

OTHER JUSTICE OR JUDGE.

THE REMOVAL ORDER

ORDER ALLOWING REMOVAL MUST CONTAIN A TIME PERIOD IN WHICH

REMOVAL MUST TAKE PLACE (MAXIMUM OF NINETY DAYS);

AND

ANY OTHER CONDITIONS THE JUSTICE CONSIDERS TO BE IN THE PUBLIC

INTEREST.

37

THE INFORMATION TO OBTAIN A TRACKING WARRANT (INDIVIDUALS)

CHECKLIST

(SECTION 492.1(2))

THE INFORMATION TO OBTAIN THE TRACKING WARRANT:

MUST BE IN WRITING AND UNDER OATH;

AND

ESTABLISH THAT THERE ARE REASONABLE GROUNDS TO BELIEVE

THAT AN OFFENCE:

HAS BEEN COMMITTED;

OR

WILL BE COMMITTED;

AND

THAT TRACKING AN INDIVIDUAL’S MOVEMENT BY

IDENTIFYING THE LOCATION OF A THING USUALLY CARRIED OR

WORN BY THE INDIVIDUAL WILL ASSIST IN THE INVESTIGATION

OF AN OFFENCE.


CAN BE APPLIED FOR BY A PEACE OFFICER OR A PUBLIC OFFICER.

38

THE TRACKING WARRANT (FOR INDIVIDUALS) CHECKLIST

(SECTION 492.1(2))

A TRACKING WARRANT (TRANSACTIONS AND THINGS) CAN AUTHORIZE

THE:

INSTALLATION;

MAINTAINING;

ACTIVATION; AND/OR

REMOVAL OF A TRACKING DEVICE,

IN RELATION TO:

ANY TRANSACTION OR THING


CAN BE ISSUED TO A PEACE OFFICER OR A PUBLIC OFFICER.

TIME LIMITS

MAXIMUM SIXTY (60) DAYS AT A TIME (ONE YEAR FOR OFFENCES UNDER

SECTIONS 567.11 TO 467.13; CRIMINAL ORGANIZATION OFFENCE; OR

TERRORISM OFFENCE).

APPLICATION TO REMOVE THE TRACKING DEVICE CHECKLIST

AFTER EXPIRY OF WARRANT;

APPLICATION MUST BE IN WRITING;

SUPPORTED BY AFFIDAVIT; AND

39

MADE TO THE JUSTICE WHO ISSUED THE TRACKING WARRANT OR ANY

OTHER JUSTICE OR JUDGE.

THE REMOVAL ORDER

ORDER ALLOWING REMOVAL MUST CONTAIN A TIME PERIOD IN WHICH

REMOVAL MUST TAKE PLACE (MAXIMUM OF NINETY DAYS);

AND

ANY OTHER CONDITIONS THE JUSTICE CONSIDERS TO BE IN THE PUBLIC

INTEREST.

40

TRANSMISSION DATA RECORDER WARRANTS

(SECTION 492.2)

Prior to the enactment of the Protecting Canadians from Online Crimes Act, section

492.2 of the Criminal Code authorized the issuance of a “number recorder” warrant.

This has now been amended to refer to a “transmission data recorder” warrant. The

new provision makes no reference to telewarrants.

“Transmission data” and a “transmission data recorder” are defined in section

492.2(6) in the following manner:

“transmission data” means data that

(a) relates to the telecommunication functions of dialling, routing,

addressing or signalling;

(b) is transmitted to identify, activate or configure a device, including a

computer program as defined in subsection 342.1(2), in order to

establish or maintain access to a telecommunication service for the

purpose of enabling a communication, or is generated during the

creation, transmission or reception of a communication and identifies or

purports to identify the type, direction, date, time, duration, size, origin,

destination or termination of the communication; and

(c) does not reveal the substance, meaning or purpose of the

communication.

“transmission data recorder” means a device, including a computer program

within the meaning of subsection 342.1(2), that may be used to obtain or record

transmission data or to transmit it by a means of telecommunication.

A transmission data recorder warrant can be issued by a justice or judge of a superior

court of criminal jurisdiction. The justice or judge must be satisfied, based upon an

information under oath, that there are “reasonable grounds to suspect” that an offence

“has been or will be committed” and that “transmission data will assist in the

investigation of the offence” (see section 492.2(1)).

A transmission data recorder warrant authorizes the police “to install, activate, use,

41

maintain, monitor and remove the transmission data recorder, including covertly”

(see section 492.2(2)), but it cannot authorize the “obtaining” of “tracking data” (see

section 492.2(3))).

As a result of sections 492.2(4) and (5), a transmission data recorder warrant is valid

for a maximum of sixty days (or one year if the offence is (1) under any of sections

467.11 to 467.13; (2) committed for the benefit of a criminal organization; or (3) a

terrorism offence).

In R. v. Mahmood, 2011 ONCA 693, the Court of Appeal summarized the nature of

a number recorder warrant (prior to the amendments) in the following manner (at

paragraph 103):

In general terms, s. 492.2(1) authorizes a justice to issue a number recorder

warrant provided the justice is satisfied by an information on oath and in

writing that there are reasonable grounds to suspect that an offence against a

federal statute has been or will be committed, and that information that would

assist in the investigation of that offence could be obtained through the use of

a number recorder, as defined in s. 492.2(4). The warrant looks forward for a

period not exceeding 60 days and gathers information about telephone

numbers and locations from which calls are made, at which they are received

or to which they are intended.

42

THE INFORMATION TO OBTAIN A NUMBER RECORDER WARRANT

CHECKLIST

(SESTION492.2)

THE INFORMATION TO OBTAIN THE TRANSMISSION DATA RECORDER:

MUST BE UNDER OATH AND IN WRITING.

IT MUST CONTAIN REASONABLE GROUNDS TO SUSPECT THAT:

AN OFFENCE HAS BEEN COMMITTED;

OR

WILL BE COMMITTED.

AND

“TRANSMISSION DATA” WILL ASSIST THE INVESTIGATION OF

THE OFFENCE.

43

THE TRANSMISSION DATA RECORDER SEARCH WARRANT

CHECKLIST

MUST BE ISSUED TO A PEACE OFFICER OR A PUBLIC OFFICER.

IT CAN AUTHORIZE THE:

INSTALLING;

ACTIVATING;

USING;

MAINTAINING;

REMOVAL;

AND/OR

MONITORING OF A TRANSMISSION DATA RECORDER.

TIME LIMITS:

MAXIMUM SIXTY (60) DAYS (ONE YEAR FOR SPECIFIED OFFENCES).

TELEWARRANTS:

A TRANSMISSION DATA RECORDER SEARCH WARRANT CANNOT BE

OBTAINED BY TELEWARRANT.

44

BODY IMPRESSION WARRANT

(SECTION 487.092)

A justice or a provincial court judge can issue a body impression warrant pursuant to

section 487.092 of the Criminal Code. By virtue of section 487.092(4), it can be

obtained by telewarrant.

The information to obtain must be in writing and under oath and the judge must be

satisfied that:

(1) there are reasonable grounds to believe an offence has been committed;

(2) information concerning the offence will be obtained; and

(3) it is in the "best interests of justice" to issue the warrant.

If the judge is satisfied that the information to obtain contains the required reasonable

grounds, he or she can issue a search warrant authorizing, under the direction of a

peace officer (not a public officer) specifically described in the warrant, the obtaining

of:

(1) any handprint;

(2) fingerprint;

(3) foot impression;

(4) teeth impression; or

(5) any other impression of the body or a part thereof.

The warrant can also contain such terms and conditions that the judge considers

advisable to ensure that any search or seizure is a reasonable one (such as advising

the suspect of his/her right to counsel, providing the suspect with a copy of the

warrant, etc.).

45

THE INFORMATION TO OBTAIN A BODY IMPRESSION WARRANT

CHECKLIST

(SECTION 487.092)

AN INFORMATION TO OBTAIN A BODY IMPRESSION WARRANT:

MUST BE UNDER OATH AND IN WRITING;

IT MUST CONTAIN REASONABLE GROUNDS ESTABLISHING:

THAT AN OFFENCE UNDER THE CRIMINAL CODE OR OTHER ACT

OF PARLIAMENT HAS BEEN COMMITTED;

AND

THAT INFORMATION CONCERNING THE OFFENCE WILL BE

OBTAINED;

AND

THAT IT IS IN THE "BEST INTERESTS OF THE ADMINISTRATION

OF JUSTICE TO ISSUE THE WARRANT.

46

THE BODY IMPRESSION WARRANT CHECKLIST

A JUSTICE CAN ISSUE A SEARCH WARRANT ALLOWING FOR THE

OBTAINING OF:

HANDPRINTS;

FOOTPRINTS;

FINGERPRINTS;

FOOT IMPRESSIONS;

TEETH IMPRESSIONS;

OR

OTHER IMPRESSIONS OF THE BODY OR A PART OF THE BODY.

IT MUST BE ISSUED TO:

A PEACE OFFICER WHO IS NAMED IN THE WARRANT;

AND

THE WARRANT CAN CONTAIN TERMS AND CONDITIONS TO

ENSURE THE SEIZURE IS REASONABLE.

TELEWARRANTS:

A BODY IMPRESSION SEARCH WARRANT CAN BE OBTAINED BY

TELEWARRANT (s. 487.092(4)).

47

BLOOD SAMPLE WARRANT

(SECTION 320.29)

A justice or a provincial court judge can, pursuant to section 320.29 of the Criminal

Code, issue a search warrant authorizing the taking of blood samples from a person.

The information to obtain a search warrant allowing the samples to be taken must be

under oath, in Form 1, and the judge must be satisfied that:

(a) there are reasonable grounds to believe that the person has, within the

preceding eight hours, operated a conveyance that was involved in an accident

that resulted in bodily harm to themselves or another person or in the death of

another person;

(b) there are reasonable grounds to suspect that the person has alcohol or a drug

in their body; and

(c) a qualified medical practitioner is of the opinion that

(i) by reason of any physical or mental condition of the person, the person is

unable to consent to the taking of samples of their blood, and

(ii) the taking of samples of the person’s blood will not endanger their health.

If the judge is satisfied of these elements, he or she can issue a warrant, in Form 5 or

5.1, authorizing a peace officer to require a qualified medical practitioner or a

qualified technician, to take such samples of blood that in the opinion of the person

taking the samples are necessary for a proper drug/alcohol analysis to be made.

Duration of warrant:

Samples of blood may be taken “only during the time that a qualified medical

practitioner is satisfied that the conditions referred to in subparagraphs (1)(c)(i) and

(ii) continue to exist.

Copy or facsimile to person:

If a blood warrant is executed, “the peace officer shall, as soon as practicable, give a

copy of it — or, in the case of a warrant issued by telephone or other means of

48

telecommunication, a facsimile — to the person from whom the samples of blood are

taken”.

TELEWARRANTS:

Section 487.1 of the Criminal Code applies and therefore a blood sample warrant can

be obtained by telephone or other means of telecommunication (see sections

320.29(1) and (3)).

49

THE INFORMATION TO OBTAIN A BLOOD SAMPLE WARRANT

CHECKLIST

(SECTION 320.29)

THE INFORMATION TO OBTAIN THE BLOOD SAMPLE WARRANT:

MUST BE UNDER OATH AND IN FORM 1.

IT MUST CONTAIN REASONABLE GROUNDS TO BELIEVE:

there are reasonable grounds to believe that the person has, within the

preceding eight hours, operated a conveyance that was involved in an accident

that resulted in bodily harm to themselves or another person or in the death of

another person;

there are reasonable grounds to suspect that the person has alcohol or a drug

in their body; and

a qualified medical practitioner is of the opinion that

by reason of any physical or mental condition of the person, the person

is unable to consent to the taking of samples of their blood, and

the taking of samples of the person’s blood will not endanger their

health.

50

THE BLOOD SAMPLE WARRANT CHECKLIST

A JUSTICE MAY ISSUE A WARRANT ALLOWING:

A PEACE OFFICER TO REQUIRE THAT A QUALIFIED MEDICAL

PRACTITIONER OR QUALIFIED TECHNICIAN:

TAKE BLOOD SAMPLES,

FOR A PROPER ANALYSIS OF THE CONCENTRATION OF

ALCOHOL OR DRUGS IN THE PERSON'S BLOOD TO BE MADE.

TELEWARRANTS:

A BLOOD SAMPLE WARRANT CAN BE OBTAINED BY TELEPHONE OR

OTHER MEANS OF TELECOMMUNICATION.

51

THE CONTROLLED DRUGS AND SUBSTANCES ACT

Section 11 of the Controlled Drugs and Substances Act authorizes a justice or a

provincial court judge (see section 2 of the Controlled Drugs and Substances Act) to

issue a search warrant to a peace officer (a specific officer does not have to be named,

see R. v. Pitrie, 2011 NBCA 106) to search "a place at anytime" if satisfied by an

information on oath in an ex parte application, that there are reasonable grounds to

believe that there is, in that place:

i. a "controlled substance or precursor" in respect of which the Controlled

Drugs and Substances Act has been contravened (a "controlled substance" is a

substance listed in Schedules I - V of the Controlled Drugs and Substances Act

and a "precursor" is a substance listed in Schedule VI of the Controlled Drugs

and Substances Act);

ii. anything in which a controlled substance or precursor is contained or

concealed;

iii. "anything" that will afford evidence of an offence under the Controlled

Drugs and Substances Act; or

iv. "offence-related" property (see R. v. Sadikov, 2014 ONCA 72, at paragraph

80 and R. v. Butler, 2014 NLTD(G) 36).

In R. v. Savoy, 2012 NBCA 36, the New Brunswick Court of Appeal described the

prerequisites for the issuing of a search warrant pursuit to section 11 of the Controlled

Drugs and Substances Act in the following manner:

A warrant may issue pursuant to s. 11(1) of the CDSA only where a judge is

satisfied by sworn information that there are reasonable grounds to believe that

an offence has been committed or is about to be committed, and that evidence

of that offence will be found at the specified time and place. It is trite law that

the case for issuance need not be made beyond a reasonable doubt. It is

sufficient if it is established to the warrant judge’s satisfaction that the things

to be searched for are probably in the place to be searched.

The warrant can be issued to search a place in another province (section 11(3)); and

section 489.1 (return of seized items to owner) and section 490 (application to keep

52

possession of a seized item) of the Criminal Code apply (see section

13(1) - Controlled Drugs and Substances Act).

In R. v. Saunders (2003), 181 C.C.C. (3d) 268 (N.L.C.A.), it was held that section

488(b) does not apply to search warrants issued pursuant to the Controlled Drugs and

Substances Act.

In R. v. Adams, [2004] N.J. No. 105 (P.C.), it was held that though the Controlled

Drugs and Substances Act allows a judge to issue a warrant that authorizes the police

to conduct a search at any time, in order to be valid the search warrant must

specifically state that it is authorizing the police to conduct the search in such a

manner. In R. v. Snow (2005), 148 Nfld. & P.E.I.R. 64 (N.L.S.C.), the Court held

that a Controlled Drugs and Substances Act search warrant does not have to specify

when it is to be executed.

ENTRY WITHOUT NOTICE:

In R. v. Perry [2009] N.J. No. 39, the New Brunswick Court of Appeal held that a

Controlled Drugs and Substances Act search warrant does not have to be “endorsed

by the issuing judge before police may execute a ‘no knock’ entry.” At paragraph 6,

the Court of Appeal noted that “there is no legislative provision which requires or

permits such an endorsement”:

Neither the police nor the Crown requested the issuing judge make an

endorsement authorizing a "no knock" entry. Furthermore, the issuing judge

did not, on his own motion, choose to make such an endorsement. I also note

there is no legislative provision which requires or permits such an

endorsement. No doubt for good reason. It does not take much imagination to

think of situations where circumstances change after the issuance of a warrant,

which either eliminate the need for a "no knock" entry or require one which

was previously thought unnecessary. Following the issuance of the warrant,

police officers and judges should not be required to meet again to address the

appropriate mode of entry. To impose such a requirement upon police and the

judiciary would result in the micro-management of police investigations. The

development of the law should not sanction the management of police

operations by the judiciary except where necessary in the course of fulfilling

judicial functions. I do not consider the pre-determination of the method by

which police are to exercise their discretion and respond to changing

53

circumstances in executing the search of a suspect's premises to constitute part

of the judicial function.

TELEWARRANTS:

Section 11(2) of the Controlled Drugs and Substances Act allows for an information

to be submitted by telephone or other means of telecommunication in accordance

with section 487.1 of the Criminal Code.

54

THE INFORMATION TO OBTAIN A CONTROLLED DRUGS AND

SUBSTANCES ACT SEARCH WARRANT CHECKLIST

AN INFORMATION TO OBTAIN A CDSA SEARCH WARRANT, MUST:

BE UNDER OATH; AND

SATISFY THE JUSTICE THAT THERE ARE REASONABLE GROUNDS TO

BELIEVE:

THAT IN A "PLACE" THERE IS:

ANYTHING THAT WILL AFFORD EVIDENCE OF AN OFFENCE

UNDER THE CDSA;

OR

A CONTROLLED SUBSTANCE OR PRECURSOR IN RESPECT OF

WHICH THE CDSA HAS BEEN CONTRAVENED;

OR

OFFENCE-RELATED PROPERTY;

OR

ANYTHING IN WHICH A CONTROLLED SUBSTANCE OR

PRECURSOR IS CONTAINED OR CONCEALED.

55

THE CONTROLLED DRUGS AND SUBSTANCES ACT WARRANT

CHECKLIST

MUST BE ISSUED TO A PEACE OFFICER.

IT ALLOWS A PEACE OFFICER TO:

SEARCH A PLACE AT ANY TIME.

FOR:

ANYTHING THAT WILL AFFORD EVIDENCE OF AN OFFENCE

UNDER THE CDSA;

OR

A CONTROLLED SUBSTANCE OR PRECURSOR IN RESPECT OF

WHICH THE CDSA HAS BEEN CONTRAVENED;

OR

OFFENCE-RELATED PROPERTY;

OR

ANYTHING IN WHICH A CONTROLLED SUBSTANCE OR

PRECURSOR IS CONTAINED OR CONCEALED.

TELEWARRANTS:

A CDSA SEARCH WARRANT CAN BE OBTAINED BY TELEWARRANT.

EXTRA TERRITORIAL EFFECT:

A CDSA SEARCH WARRANT CAN BE ISSUED FOR AND EXECUTED IN

ANOTHER PROVINCE (SECTION 11(3) AND (4)).

56

SEARCH WARRANT AUTHORIZING THE SEIZURE OF WEAPONS

(SECTION 117.04)

Section 117.04(1) of the Criminal Code authorizes a justice or a provincial court

judge to issue a search warrant authorizing a peace officer to search for and seize any

weapon, prohibited device, ammunition, prohibited ammunition, explosive substance

and any authorization, licence or registration certificate relating to any of these items,

that is "held by or in the possession of the person." The section makes no reference

to telewarrants.

The application for a section 117.04 search warrant can only be made by a peace

officer. It requires an information in writing and under oath. The application to

obtain the search warrant must satisfy the judge that there are reasonable grounds to

believe that "it is not desirable in the interests of the safety of the person, or any other

person for the person to possess [one of the listed items]."

The search warrant can only be issued to a peace officer.

In R. v. Day, [2006] O.J. No. 3187 (S.C.), the Court considered section 117.04 and

concluded that the "appropriate test is whether there are legitimate concerns the

person lacks the responsibility and discipline the law requires of gun owners." The

Court also stated that:

As can be seen in s. 117.05(4), the justice of the peace had to make a threshold

determination that it was "not desirable in the interests of the safety of the

person from whom the thing was seized, or of any other person, that the person

should possess any weapon, prohibited device, ammunition, prohibited

ammunition and explosive substance, or any such thing", before she had any

jurisdiction to make any order. Her Worship did not directly say that she

reached the threshold conclusion although it could be inferred she did so in

regards to the respondent having guns in Guelph. However, the section does

not permit a conditional order, having weapons in some places and not others.

Counsel agree that there was no jurisdiction to make the order that was issued.

Second, if the condition noted above was established, the justice of the peace

was required to order the forfeiture of the items, or direct that they be otherwise

dealt with, and, if satisfied that the circumstances warranted it, prohibit the

respondent from possessing firearms etc. for up to five years.

57

APPLICATION FOR THE SEIZURE OF WEAPONS WARRANT

CHECKLIST

(SECTION 117.04)

THE APPLICATION:

MUST BE MADE BY A PEACE OFFICER.

CAN BE IN RELATION TO ANY PERSON.

THE APPLICATION MUST SATISFY THE JUSTICE THAT THERE

ARE REASONABLE GROUNDS TO BELIEVE THAT IT IS NOT

DESIRABLE IN THE INTERESTS OF THE SAFETY OF THE PERSON OR

OF ANY PERSON, FOR THE PERSON TO POSSESS:

A WEAPON;

A PROHIBITED DEVICE;

AMMUNITION;

PROHIBITED AMMUNITION;

AN EXPLOSIVE SUBSTANCE;

OR

A RELATED LICENCE.

58

THE WEAPON SEIZURE SEARCH WARRANT CHECKLIST

THE SEARCH WARRANT:

CAN ONLY BE ISSUED TO A PEACE OFFICER.

IT AUTHORIZES THE SEIZURE OF ANY:

WEAPON;

PROHIBITED DEVICE;

AMMUNITION;

PROHIBITED AMMUNITION;

EXPLOSIVE SUBSTANCE;

OR

RELATED LICENCE.

59

GAMING AND BETTING SEARCH WARRANT

(SECTION 199)

Section 199 of the Criminal Code authorizes a justice or a provincial court judge to

issue a search warrant authorizing a peace officer to enter and search "by day or

night", "any place" within the territorial jurisdiction of the justice and to seize

"anything" that "may be evidence of one of the following offences:

s.201 (keeping a gaming or betting house);

s.202 (book-making);

s.203 (placing bets);

s.206 (lotteries and games of chance);

s.207 (lottery schemes); or

s.210 (keeping a common bawdy-house).

The search warrant can also authorize a peace officer "to take into custody all persons

who are found in or at that place" and require that any such person or thing be brought

before a justice or provincial court judge.

The information to obtain must be on oath.

Section 199(6) exempts from seizure any communication facilities or equipment that

may be evidence of or that may have been used in the commission of one of the

offences listed in section 199(1) of the Criminal Code. To qualify for such an

exemption, the facility or equipment must be owned by someone who is engaged in

providing a telephone, telegraph or other communication service to the public or it

must be part of the person's telephone, telegraph or other communication service or

system and the facility or equipment must not be of a type "that is designed or adapted

to record a communication" (see section 199(7)).

Section 199 makes no reference to telewarrants.

60

THE INFORMATION TO OBTAIN A GAMING AND BETTING SEARCH

WARRANT CHECK LIST

(SECTION 199)

IT MUST BE ON OATH.

IT MUST ESTABLISH REASONABLE GROUNDS TO BELIEVE THAT AN

OFFENCE UNDER SECTION:

201;

202;

203;

206;

207;

OR

210 OF THE CRIMINAL CODE

HAS BEEN COMMITTED,

AT "ANY PLACE", WITHIN THE TERRITORIAL JURISDICTION OF THE

JUSTICE.

61

THE GAMING AND BETTING SEARCH WARRANT CHECKLIST

THE SEARCH WARRANT:

CAN ONLY BE ISSUED TO A PEACE OFFICER.

IT CAN AUTHORIZE A PEACE OFFICER:

TO ENTER ANY PLACE;

BY DAY OR NIGHT;

AND TO:

SEIZE ANYTHING FOUND IN THE PLACE THAT MAY BE EVIDENCE OF

AN OFFENCE UNDER:

s.201;

s.202;

s.203;

s.206;

s.207;

OR

s. 210 OF THE CRIMINAL CODE.

IT CAN ALSO AUTHORIZE THE PEACE OFFICER TO TAKE INTO

CUSTODY ALL PERSONS WHO ARE FOUND IN OR AT THE PLACE AND

REQUIRE THAT THOSE PERSONS AND ANYTHING SEIZED BE TAKEN

BEFORE A JUSTICE OR PROVINCIAL COURT JUDGE.

62

SEIZURE OF COMMUNICATION EQUIPMENT

THE WARRANT CANNOT AUTHORIZE THE SEIZURE OF TELEPHONE,

TELEGRAPH OR OTHER COMMUNICATION FACILITIES OR EQUIPMENT

THAT MAY BE EVIDENCE OF ONE OF ONE OF THE LISTED OFFENCES

UNLESS:

THE FACILITY OR EQUIPMENT IS DESIGNED OR ADAPTED TO

RECORD A COMMUNICATION.

63

VALUABLE MINERALS SEARCH WARRANT

(SECTION 395(1))

Section 395(1) of the Criminal Code authorizes a justice or a provincial court judge

to issue a search warrant, to a peace officer or designated public officer (if the latter,

he or she must be specifically named in the warrant), authorizing the officer to search

for and seize valuable minerals in "a place or held by a person." It makes no reference

to telewarrants.

The information to obtain must be on oath and in writing. The search warrant must

be applied for by a peace officer or a designated public officer. The information must

satisfy the judge that there are reasonable grounds to believe that in contravention of

the Criminal Code or any other Act of Parliament, any valuable mineral is deposited

in a place or held by a person."

Valuable mineral is defined by section 2 of the Criminal Code as:

"A mineral of a value of at least $100 per kilogram, and includes precious

metals, diamonds and other gemstones and any rock or ore that contains those

minerals."

64

THE INFORMATION TO OBTAIN A VALUABLE MINERALS SEARCH

WARRANT CHECKLIST

(SECTION 395(1))

THE INFORMATION TO OBTAIN THE VALUABLE MINERAL SEARCH

WARRANT MUST:

BE ON OATH;

IN WRITING; AND

SUBMITTED BY A PEACE OFFICER OR DESIGNATED PUBLIC OFFICER.

THE INFORMATION TO OBTAIN MUST CONTAIN REASONABLE

GROUNDS TO BELIEVE THAT:

ANY "VALUABLE MINERAL";

IS DEPOSITED IN:

A PLACE, OR

HELD BY A PERSON,

IN CONTRAVENTION OF THE CRIMINAL CODE OR ANY OTHER ACT OF

PARLIAMENT.

65

THE VALUABLE MINERAL SEARCH WARRANT CHECKLIST

THE SEARCH WARRANT:

CAN ONLY BE ISSUED TO A PEACE OFFICER OR DESIGNATED PUBLIC

OFFICER.

IF A PUBLIC OFFICER, HE OR SHE MUST BE NAMED IN THE

WARRANT.

THE SEARCH WARRANT AUTHORIZES THE SEARCH OF:

ANY PLACE

OR

PERSONS,

FOR VALUABLE MINERALS BEING HELD IN CONTRAVENTION OF THE

CRIMINAL CODE OR ANY OTHER ACT OF PARLIAMENT.

66

TELEWARRANTS

(SECTION 487.1)

Section 487.1 of the Criminal Code allows for search warrants to be obtained by use

of a telephone or other means of telecommunication from a justice or a provincial

court judge, if:

(1) the justice or judge has the jurisdiction to issue the type of search warrant

being requested; and

(2) the justice or judge has been designated...by the chief judge of the

Provincial Court.

The peace officer must state in the information to obtain the telewarrant that he or

she believes:

(1) that an indictable offence has been committed; and

(2) that it would be impracticable to appear personally to make the application

for the warrant, in accordance with sections 256 or 487 of the Criminal Code.

(Other search warrant provisions contain a subsection allowing for their

issuance by telewarrant. See the list included in these materials and R. v.

Brown, [2003] O.J. No. 5089 (S.C.J.) and R. v. Butler, 2014 NLTD(G) 36).

In R. v. Chung, [2005] B.C.J. No. 2839 (P.C.), the Court considered the word

"impracticable" in the context of this section and concluded:

By virtue of s. 487.1(5), I must also be satisfied that the ITO discloses

reasonable grounds for dispensing with an Information presented personally

and in writing. In this case, defence counsel submits that the circumstances did

not make it impracticable for the police officer to appear in person. In

determining the meaning of impracticable, I find the decision of the B.C. Court

of Appeal in R. v. Erickson, [2003] B.C.J. No. 2982 to be instructive. Madam

Justice Saunders considers the meaning of impracticable and says at paragraph

33:

It is reasonable to conclude that impracticable means something less

than impossible and imports a large measure of practicality, what may

67

be termed commonsense.

In R. v. Nguyen, [2009] B.C.J. No. 341 (C.A.), it was held that "the onus ... to

demonstrate that the standard of impracticability was not met" rests with the person

challenging the validity of the search warrant. This approach was affirmed by the

Court of Appeal in R. v. Ballendine, [2011] B.C.J. No. 838 (C.A.).

If the officer has the requisite belief, he or she can submit an information to obtain

by telephone or other means of telecommunication. It must be submitted to a justice

or judge designated by the chief judge of the provincial court for this purpose. The

justice or judge must, "as soon as practicable", cause the information to obtain the

telewarrant to be filed in the territorial division in which the warrant is intended for

execution. Section 487.1(2.1) of the Criminal Code requires the justice or judge to

certify the information to obtain "as to time and date of receipt."

The information to obtain the telewarrant must include:

i. the circumstances that make it impracticable for the peace officer to appear

personally before a judge or justice (see R. v. Bui, [2004] B.C.J. No. 1695

(P.C.);

ii. the indictable offence alleged to have been committed;

iii. the place or premises to be searched;

iv. the items to be seized;

v. the peace officer's grounds for believing that these items will be found in the

specified place; and

vi. a statement regarding any prior telewarrant applications or any other

applications for a search warrant in relation to the "same matter."

THE OATH

Section 487.1(3) of the Criminal Code allows for the oath in relation to the

information to obtain the search warrant to be administered by telephone. It allows

the officer to make a statement in writing stating that all matters contained in the

information are true to his or her knowledge and belief. This statement is deemed to

have been made under oath.

http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23BCJ%23year%252009%25sel1%252009%25ref%25341%25&risb=21_T14800136466&bct=A&service=citation&A=0.2875768781497463

http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23BCJ%23year%252011%25sel1%252011%25ref%25838%25&risb=21_T14800136466&bct=A&service=citation&A=0.8683735810376496

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THE TEST

The judge must be satisfied that the statutory prerequisites for the particular search

warrant have been established and that:

i. it is sought in respect of an "indictable offence"; and

ii. reasonable grounds exist for dispensing with an "information presented

personally and in writing."

In R. v. Scott, 2012 BCCA 99, it was held that “a bald statement as to the

unavailability of a justice will not suffice as a statement of the circumstances creating

impracticability. There must be something more to permit the issuing justice to assess

the reasonableness of the officer’s belief that an application for a warrant in the usual

course is impracticable.”

ISSUING THE TELEWARRANT

If the judge decides to issue a telewarrant then he or she must:

(1) complete and sign the search warrant in Form 5.1 (the use of this form is

mandatory, see R. v. Scoville, [2011] N.J. No. 268 (P.C.));

(2) make a note of the time, date and place of issuance, on the face of the search

warrant;

(3) cause it to be filed as soon as practicable after its issuance; and

(4) transmit the search warrant to the peace officer by means of

telecommunication.

REQUEST TO SEARCH AT NIGHT:

Section 488 of the Criminal Code states that a telewarrant must be executed by day

unless:

(a) the judge is satisfied that there are reasonable grounds for it to be executed

by night;

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(b) the reasonable grounds are included in the information to obtain; and

(c) the warrant authorizes that it be executed by night.

A LIST OF SEARCH WARRANTS THAT CAN BE OBTAINED BY THE

TELEWARRANT PROCESS

1. A section 320.29 blood sample warrant (by virtue of sections 320.29(1) and (3));

2. A section 487 search warrant (by virtue of section 487.1(1));

3. A section 487.01 general warrant (by virtue of section 487.01(7));

4. A section 487.01(4) video surveillance warrant (by virtue of section 487.01(7));

5. A section 487.092 impression warrant (by virtue of sections 487.092(4));

6. A section 487.05 DNA warrant (by virtue of sections 487.05(3));

7. A section 529, 529.1, or 529.4 warrant to arrest a person in a dwelling-house (by

virtue of section 529.5); and

8. A section 11 Controlled Drugs And Substances Act search warrant (by virtue of

section 11(2) of the Controlled Drugs and Substances Act.

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THE INFORMATION TO OBTAIN A TELEWARRANT CHECKLIST

(SECTION 487.1)

THE INFORMATION TO OBTAIN A TELEWARRANT:

MUST BE MADE BY A PEACE OFFICER;

BE UNDER OATH;

INDICATE THAT AN INDICTABLE OFFENCE HAS BEEN COMMITTED;

INDICATE WHY IT IS IMPRACTICABLE TO APPEAR PERSONALLY

BEFORE A JUSTICE TO OBTAIN THE SEARCH WARRANT;

DESCRIBE THE PLACE/PREMISES TO BE SEARCHED;

DESCRIBE THE ITEMS TO BE SEIZED;

INDICATE THE PEACE OFFICER'S REASONS FOR BELIEVING THAT THE

ITEMS ARE IN THE PLACE/PREMISES TO BE SEARCHED;

INDICATE WHETHER OR NOT ANY PRIOR TELEWARRANT

APPLICATIONS OR OTHER SEARCH WARRANT APPLICATION WAS

MADE; AND

FULFILL THE STATUTORY PREREQUISITES FOR THE TYPE OF SEARCH

WARRANT SOUGHT.

JURISDICTION:

ONLY A JUSTICE THAT IS DESIGNATED BY THE CHIEF JUDGE OF THE

PROVINCIAL COURT CAN ISSUE AND THE JUSTICE MUST HAVE THE

JURISDICTION TO ISSUE THE TYPE OF SEARCH WARRANT BEING

SOUGHT.

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THE OATH:

THE OFFICER MUST INCLUDE IN THE INFORMATION TO OBTAIN A

STATEMENT THAT "ALL THE MATTERS CONTAINED IN THE

INFORMATION ARE TRUE TO [THE PEACE OFFICER'S] KNOWLEDGE AND

BELIEF."

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ISSUNG A TELEWARRANT CHECKLIST

THE JUSTICE MUST:

COMPLETE AND SIGN THE WARRANT IN FORM 5.1;

MAKE NOTE ON THE FACE OF THE SEARCH WARRANT:

THE TIME;

THE DATE; AND

THE PLACE OF ISSUANCE OF THE SEARCH WARRANT.

CAUSE THE SEARCH WARRANT TO BE FILED AS SOON AS

PRACTICABLE AFTER ITS ISSUANCE; AND

TRANSMIT THE SEARCH WARRANT TO THE PEACE OFFICER BY

MEANS OF TELECOMMUNICATION.

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THE PREREQUISITES FOR ISSUING A TELEWARRANT CHECKLIST

THE JUSTICE MUST BE SATISFIED:

THAT AN INDICTABLE OFFENCE HAS BEEN COMMITTED;

THAT THERE ARE REASONABLE GROUNDS TO DISPENSE WITH AN

INFORMATION BEING PRESENTED IN PERSON;

THAT THE INFORMATION TO OBTAIN SATISFIES THE STATUTORY

REQUIREMENTS FOR THE PARTICULAR SEARCH WARRANT BEING

SOUGHT; AND

THAT HE OR SHE HAS THE JURISDICTION TO ISSUE A TELEWARRANT

AND THE SPECIFIC TYPE OF SEARCH WARRANT BEING SOUGHT.

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A WARRANT TO ENTER A DWELLING HOUSE TO ARREST A

SUSPECT

(SECTIONS 529 and 529.1)

Sections 529 and 529.1 of the Criminal Code allow a justice or a provincial court

judge or a supreme court judge (see the definition of judge in section 494) to issue a

warrant in Form 7.1 (commonly referred to as a "Feeney warrant" after the Supreme

Court of Canada's judgment in R. v. Feeney), authorizing a peace officer (not a public

officer) to enter a "dwelling house" that is described in the warrant and to arrest or

apprehend therein a person "identified or identifiable by the warrant." The judge

must be satisfied, based on an information on oath, that there are reasonable grounds

to believe:

i. that the person is or will be present in the dwelling house; and

ii. that an "arrest warrant" pursuant to the Criminal Code or any other Act of

Parliament exists; or

iii. that grounds exist to arrest the person, without a warrant under sections

495(1)(a) or (b) or section 672.91 of the Criminal Code; or

iv. that grounds exist to arrest the person without a warrant under an Act of

Parliament other than the Criminal Code.

SECTION 495 OF THE CRIMINAL CODE

Section 495(1)(a) of the Criminal Code authorizes a peace officer to arrest a

person "without a warrant" if:

i. the person has committed an "indictable offence" or there are reasonable

grounds to believe that he or she has or is about to do so; or

ii. the person is found "committing a criminal offence"; or

iii. there are reasonable grounds to believe that a warrant of arrest or committal

is in force within the jurisdiction.

This power to arrest, without a warrant, is limited by section 495(2) of the Criminal

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Code, which prohibits such an arrest for:

1. offences listed under section 553 of the Criminal Code;

2. hybrid offences; or

3. summary conviction offences;

unless an arrest is necessary to

a. establish the person's identity;

b. secure or preserve evidence; or

c. prevent the continuation or repetition of the offence or another

offence.

SECTION 672.91 OF THE CRIMINAL CODE

Section 672.91 authorizes a police officer to arrest an accused, without a warrant, if

there are reasonable grounds to believe that the person has willfully failed to comply

with an assessment order or disposition.

TERMS/CONDITIONS:

The issuing judge "shall" include in the warrant any terms and conditions he or she

considers advisable to ensure that the entry into the house is reasonable.

In R. v. Woledge, 2005 NWTSC 45 (Can LII), the accused was arrested in his

residence after the police executed a CDSA warrant. The accused argued that the

items seized should be excluded because the police did not have a section 529.1

warrant. In rejecting this submission, Schuler J., stated (at paragraphs 11 and 12):

In this case, the police did not enter the accused's home for the purpose of

arresting him. They entered for the purpose of executing the s. 11 CDSA

warrant. That warrant authorized them to enter the home and to do certain other

things: search for and seize cocaine and other items. In obtaining that warrant,

Constable Carter was required to, and did, demonstrate that the police had

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reasonable grounds to enter into the home to search for evidence of drug

trafficking.

Since the police had the CDSA warrant, they had judicial authorization to be

in the accused's home and intrude on his privacy there. The point of a Feeney

warrant would be to allow them to enter the home to make an arrest; they did

not need that warrant since they already had judicial authorization to enter the

home.

WITHOUT PRIOR ANNOUNCEMENT:

Normally, the entry by the police into a person’s residence requires that they

announce their presence before doing so, subject to exigent circumstances (see R. v.

Kim, 2015 ABCA 274).

In R. v. Dewolfe, [2007] N.S.J. No. 285, the Nova Scotia Court of Appeal pointed

out that at "common law, in the ordinary case, before forcing entry into a private

dwelling, police officers, should give: (1) notice of presence by knocking or ringing

a doorbell; (2) notice of authority by identifying themselves as law enforcement

officers; and (3) notice of purpose by stating a lawful reason for entry. This rule is

subject to an exception for 'exigent circumstances.'"

However, a judge who issues a section 529 or s.529.1 warrant, or any other judge or

justice may, pursuant to section 529.4 of the Criminal Code, authorize the peace

officer to enter the dwelling without "prior announcement" if satisfied by an

information on oath that there are reasonable grounds to believe that prior

announcement of entry would:

i. expose the officer, or any other person, to imminent death or bodily harm; or

ii. result in the imminent loss or destruction of evidence relating to the

commission of an indictable offence.

This application can be included in the same information to obtain which is being

used to obtain the search warrant to enter the dwelling house.

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TELEWARRANT:

As a result of section 529.5 of the Criminal Code, a section 529.1 search warrant or

a section 529 or section 529.4 authorization, can be issued through the telewarrant

process.

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THE INFORMATION TO OBTAIN A WARRANT TO ENTER A

DWELLING HOUSE TO ARREST CHECKLIST

(SECTIONS 529 and 529.1)

THE INFORMATION TO OBTAIN A WARRANT TO ENTER A RESIDENCE

AND ARREST:

MUST BE UNDER OATH.

IT MUST CONTAIN REASONABLE GROUNDS TO BELIEVE THAT:

IN A DWELLING HOUSE, IDENTIFIED IN THE WARRANT;

A PERSON IS PRESENT OR WILL BE PRESENT;

AND

A WARRANT TO ARREST OR APPREHEND, ISSUED UNDER THE

CRIMINAL CODE OR ANOTHER ACT OF PARLIAMENT, EXISTS AND

IS IN FORCE IN CANADA;

OR

GROUNDS FOR ARREST EXIST UNDER SECTIONS 495(1)(a) OR (b)

OR 672.91 OF THE CRIMINAL CODE;

OR

GROUNDS EXIST TO ARREST OR APPREHEND WITHOUT A

WARRANT UNDER ANOTHER STATUTE.

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THE WARRANT TO ENTER A RESIDENCE TO ARREST CHECKLIST

MUST BE IN FORM 7.1.

IT AUTHORIZES A PEACE OFFICER TO ENTER A DWELLING HOUSE, TO

ARREST OR APPREHEND A PERSON.

THE DWELLING HOUSE MUST BE DESCRIBED IN THE WARRANT.

THE PERSON MUST BE IDENTIFIED OR IDENTIFIABLE BY THE

WARRANT.

TERMS/CONDITIONS:

MUST CONTAIN THOSE TERMS AND CONDITIONS THAT THE JUSTICE

CONSIDERS ADVISABLE TO ENSURE THAT THE ENTRY IS REASONABLE.

OMITTING THE PRIOR ANNOUNCEMENT REQUIREMENT

SECTION 529.4:

THE JUSTICE WHO AUTHORIZED THE ENTRY, OR ANY OTHER

JUDGE/JUSTICE, MAY AUTHORIZE A PEACE OFFICER TO ENTER A

DWELLING HOUSE WITHOUT PRIOR ANNOUNCEMENT IF HE OR SHE

RECEIVES:

AN INFORMATION ON OATH;

CONTAINING REASONABLE GROUNDS TO BELIEVE THAT A

PRIOR ANNOUNCEMENT WOULD:

EXPOSE THE OFFICER, OR ANY OTHER PERSON TO

IMMINENT BODILY HARM OR DEATH

OR

RESULT IN THE IMMINENT LOSS OR DESTRUCTION OF

EVIDENCE RELATING TO THE COMMISSION OF AN

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INDICTABLE OFFENCE.

.

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GENERAL WARRANTS

(SECTION 487.01)

Only a Provincial Court Judge or a judge of a superior court of criminal jurisdiction

or a "judge" as defined in section 552 of the Criminal Code can issue a general

warrant. A justice does not have the jurisdiction to issue a general warrant. In R. v.

Ha, 2009 ONCA 340, the Ontario Court of Appeal summarized the factors which the

issuing judge must be satisfied of, under section 487.01, as follows:

there are reasonable and probable grounds to believe that an offence has been

or will be committed (section 487.01(1)(a));

information concerning the offence will be obtained through the use of the

investigative means authorized in the warrant (section 487.01(1)(a));

the issuance of the warrant is in the best interests of the administration of

justice (section 487.01(1)(b)); and

no other provision in the Act or other federal legislation provides for a warrant

authorizing the investigative means sought to be used (s. 487.01(1)(c)).

The warrant can relate to a search or seizure "in relation of a person or a person's

property." Therefore, unlike a section 487 search warrant, a general warrant can

authorize the search of a person. In Ha, it was held that the words investigative

technique, procedure, and do anything described in the warrant “encompass police

entries and searches.” In R. v. Li, 2013 ONCA 81, the issue as to whether a Provincial

Court Judge has the authority to issue a general warrant authorizing the use of video

surveillance was considered, but not conclusively determined.

In R. v. Poirier, 2016 ONCA 582, it was held that a general warrant allows for a

bedpan vigil search, but not in violation of section 503 of the Criminal Code. A

general warrant must be in writing and the information to obtain must be in writing

and under oath. A general warrant authorizes a peace officer (not a public officer) to

"use any device or investigative technique or procedure or to do anything described

in the warrant that would, if not authorized, constitute an unreasonable search or

seizure."

In R. v. Whipple, 2016 ABCA 232, it was held that a general warrant which

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authorized the police to stop a motor vehicle and to delay informing the suspect of

the full reasons why they stopped his vehicle and conducted a search of it, was valid.

In R. v. Telus Communications Co., 2013 SCC 16, the police obtained a general

warrant and an assistance order requiring Telus to provide the police with copies of

any stored text messages sent or received by two Telus subscribers. Telus applied to

quash the general warrant arguing that the prospective, daily acquisition of text

messages from their computer database constitutes an interception of private

communications and therefore requires authorization under the wiretap authorization

provisions in Part VI of the Criminal Code. The application was dismissed. Telus

appealed to the Supreme Court of Canada. The Supreme Court described the issues

raised and not raised by the appeal in the following manner:

We have not been asked to determine whether a general warrant is available to

authorize the production of historical text messages, or to consider the

operation and validity of the production order provision with respect to private

communications. Rather, the focus of this appeal is on whether the general

warrant power in s. 487.01 of the Code can authorize the prospective

production of future text messages from a service provider’s computer. That

means that we need not address whether the seizure of the text messages would

constitute an interception if it were authorized after the messages were stored.

The appeal was allowed and the general warrant and assistance order were quashed.

The Supreme Court of Canada held that text messaging constitutes an “electronic

conversation” and thus they are subject to the “comprehensive scheme” set out in the

Criminal Code for the interception of private communications even if the messages

are stored on a service provider’s computer. As a result, a general warrant cannot be

utilized because section 487.01(1)(c) stipulates that the general warrant power is

residual and resort to it is precluded where judicial approval for the proposed

technique, procedure or device or the “doing of the thing” is available under the

Criminal Code or another federal statute.

In R. v. Christiansen, 2017 ONCA 941, the accused was convicted of the offence of

possession of controlled substances for the purpose of trafficking and possession of

the proceeds of crime. The police obtained a general warrant which led to the

obtaining of a section 11 Controlled Drugs and Substances Act warrant and the

seizure of evidence (drugs and cash). At the trial, the trial judge dismissed an

application to quash the general warrant and to exclude the evidence obtained.

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The evidence presented on the application indicated that based upon surveillance, the

police concluded that the accused was using a storage unit to store drugs.

The Court of Appeal concluded that the general warrant was invalid. The Court of

Appeal described the nature of general warrants in the following manner (at

paragraph 10):

General warrants under s. 487.01 authorize the use of investigative techniques,

procedures or devices, or other things to be done, that would otherwise

constitute unreasonable searches. Subsection 487.01(c) restricts general

warrants to cases where “there is no other [legislation] that would provide for

a warrant, authorization or order permitting the technique, procedure or device

to be used or the thing to be done.” The Supreme Court dealt with this

legislative restriction in R. v. TELUS Communications Co., [2013] 2 S.C.R. 3,

[2013] S.C.J. No. 16. Justice Moldaver explained, at para. 80, that this

requirement ensures that general warrants are to be used “sparingly” when the

“investigative technique is truly different in substance from an investigative

technique accounted for by another legislative provision.” He explained that s.

487.01(c) serves to ensure that “general warrants may not be used as a means

to circumvent other authorization provisions that are available but contain

more onerous pre-conditions.”

The Ontario Court of Appeal held that in this case “the general warrant was issued,

in substance, for the same investigative technique available under CDSA, s. 11,

namely, to search the Unit. The police could not satisfy the requirements for a search

under CDSA, s. 11 because they did not have reasonable and probable grounds to

believe there was evidence at the Unit. In effect, the police used the general warrant

for the impermissible purpose of circumventing the standards required for obtaining

a CDSA s. 11 warrant” (at paragraph 11).

As stated, the information on oath must be in writing and it must satisfy the issuing

judge that there are "reasonable grounds" to believe that:

1. an offence against the Criminal Code or any other Act of Parliament has

been committed or will be committed; and

2. "information" concerning the offence will be obtained through the use of

the technique, device, procedure or the doing of anything authorized by the

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general warrant.

The issuing judge must also be satisfied:

1. that it is in the "best interests of justice" to issue the warrant; and

2. that there is no other provision (search warrant or otherwise) in the Criminal

Code or any other Act of Parliament that would allow for a "warrant

authorization or order" to issue, permitting the technique, procedure, device or

"the thing" sought to be done, to be done.

In R. v. Mero (2003), 109 C.R.R. (2d) 34 (S.C.), Parrett J. described the perquisites

for the issuing of a general warrant as follows:

In obtaining a warrant under this section the peace officer must satisfy the

judge on oath and in writing that:

(a) there are reasonable grounds to believe that an offence has been or

will be committed;

(b) there are reasonable grounds to believe that information concerning

the offence will be obtained through the use of a technique, procedure

or device;

(c) it is in the best interests of the administration of justice to issue a

warrant; and

(d) there are no other Federal Acts that would provide for a warrant.

In Mero, it was held that the general warrant was invalid because resort to another

federal statute was available:

...the evidence presented indicated the presence of an established and ongoing

marijuana grow operation. The availability of a warrant under s. 11(1) of the

Controlled Drug and Substances Act would preclude the issuance of a warrant

under s. 487.01 by operation of s. 487.01(1)(c).

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In R. v. Brooks (2003), 178 C.C.C. (3d) 361, the Ontario Court of Appeal concluded

that a general warrant authorizing the search of a residence was invalid because

another provision authorizing such a search was available. In R. v. Ford, 2008 BCCA

94, the British Columbia Court of Appeal indicated that “there is nothing in the

language of s. 487.01(1)(c) that precludes a peace officer from obtaining a general

warrant solely because he or she has sufficient information to obtain a search

warrant. Resort to a general warrant is only precluded when judicial approval for the

proposed “technique, procedure or device or the doing of the thing” is available under

some other federal statutory provision.”

In R. v. Ongley, [2003] O.J. No. 3934 (S.C.J.), it was held that a general warrant

could be issued to gather evidence for a dangerous offender hearing.

SEARCH OF PERSON

As stated earlier, a general warrant can authorize the search of a person. However,

section 487.01(2) of the Criminal Code places a limitation on such searches. Though

the search of a person can be authorized, it cannot authorize "interference with the

bodily integrity" of any person.

In R. v. Al-Amiri, 2015 NLCA 37, the accused was charged with the offence of

trafficking after the police executed a general warrant at his residence. The accused

objected to the introduction of evidence found by the police as a result of the

execution of the search warrant on the basis that the search violated section 8 of the

Charter. The trial judge had held that the method of entry [use of an Emergency

Response Team to enter and clear the residence prior to the search being conducted]

infringed section 487.01(2) of the Criminal Code, which provides that nothing in

subsection (1) shall be construed so as to permit “interference with the bodily

integrity of any person.”

The Court of Appeal, at paragraph 41, held that the general warrant “did not purport

to authorize interference with the bodily integrity of any person. It merely dealt with

the delivery of the post office package and the securing of the residence until such

time as a search warrant could be obtained pursuant to section 11 of the CDSA.” In

addition, the Court of Appeal concluded that the trial judge “erred in discounting or

dismissing the evidence regarding the possible presence of weapons and the

indications Mr. Al-Amiri had an inclination toward violence” (at paragraph 53).

Finally, the Court of Appeal held that “the law does not require police to obtain prior

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authorization for a forcible entry” (at paragraph 54):

I agree with the New Brunswick Court of Appeal in Perry that the law does

not require police to obtain prior authorization for a forcible entry even though

they have the intent to execute in this fashion before obtaining a general

warrant. With respect, the trial judge erred in holding the failure to disclose

this intent was a basis for finding the general warrant was not lawfully issued.

The comments of Cromwell J. in Cornell about considering safety risks to

officers and about judges not micromanaging the police’s choice of equipment

support this conclusion.

THE MANNER IN WHICH THE SEARCH

AND SEIZURE IS TO BE CONDUCTED

Section 487.01(3) of the Criminal Code requires ("shall") the issuing judge to place

terms and conditions in the warrant as "the judge considers advisable to ensure that

any search or seizure, authorized by the warrant is reasonable in the circumstances."

COVERT ENTRY

A general warrant can authorize the "covert entry", by a peace officer, into a specified

place. If the warrant does so, then the terms and conditions imposed upon the

execution of the warrant (section 487.07(3)) must ("shall") contain, pursuant to

section 487.01(5.1), a condition requiring that "notice of entry" be given, "within any

time after the execution of the warrant, that the judge considers reasonable in the

circumstances." In Mero, a distinction was drawn between covert and surreptitious

entry.

In R. v. Pipping, 2020 BCCA 104, the British Columbia Court of Appeal considered

section 487.01(5.1) of the Criminal Code. In that case, the police had obtained a

general warrant, pursuant to which the police entered the common area of a building

and conducted surveillance. The accused argued that the warrant was not lawfully

issued “because it failed to contain the requisite statutory notice provision”.

The British Columbia Court of Appeal concluded that a covert search had taken place

(at paragraphs 44 and 45):

No appellate authority on this point has been brought to this court’s attention.

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Given that the search in this case was conducted by undercover officers

seeking to avoid detection, in my view the trial judge committed no palpable

and overriding error by finding that the police surveillance here constituted a

covert search.

While the Crown is correct to note that the warrant was directed to the property

manager, who is the agent of the owners of the condominium units, and that

the warrant itself makes no mention of a covert search, in my view this misses

the point. The inquiry must focus not on the words of the warrant but on what

the police sought to do. The police sought to covertly observe Mr. Pipping in

the hallway.

Did the absence of a notice provision in the general warrant invalidate the

warrant?

The Court of Appeal held the “failure to abide by a statutorily‑mandated requirement

to provide notice fails to give effect to s. 8 protections and infringes the Charter…the

trial judge erred in finding that the lack of notice provision did not affect the validity

of the general warrant. I conclude that the lack of a provision requiring the police to

give notice of their covert entry rendered the general warrant invalid…It follows from

the foregoing reasons that I conclude that the general warrant was invalid. The covert

search conducted by the police in the hallway of the Burnaby Property and the

subsequent search of the unit thus constituted a breach of Mr. Pipping’s s. 8 rights. I

will discuss the consequences of this breach below” (at paragraphs 54 and 55).

EXTENSION OF NOTICE PERIOD

The judge who issues a general warrant, or any other judge who has the jurisdiction

to issue a general warrant, may grant an extension or a subsequent extension of the

time limit for notice set out in the general warrant when it was issued.

The maximum period for the extension cannot exceed three years and the application

must include an affidavit setting out the reasons for the requested extension.

In determining whether to grant an extension, or a subsequent extension, of a section

487.01(5.1) notice of covert entry, the judge must be satisfied that the "interests of

justice" warrant the granting of the extension.

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EXTRA TERRITORIAL EFFECT

Section 487.01(6) of the Criminal Code incorporates section 487(2). This section

and s.487.03, allows a judge to issue a warrant authorizing the search of a building,

receptacle, or place that is outside of the judge's territorial jurisdiction. It must be

endorsed, in Form 28, by a judge having jurisdiction in which the search warrant is

to be executed. If endorsed, it will have the same force in the other province, as if it

had been originally issued there.

TELEWARRANT

A general warrant can be issued pursuant to the procedure for a telewarrant, set out

in section 487.1 of the Criminal Code. For the purpose of a general warrant, issued

in this fashion, the following additional conditions apply:

1. the peace officer must believe that it would be impracticable to appear

personally before a judge; and

2. the information, on oath, is submitted by telephone or "other means of

telecommunication (see section 487.01(7) of the Criminal Code).

In R. v. Noseworthy (1997), 116 C.C.C. (3d) 376 (Ont. C.A.), a search warrant was

issued under section 487 of the Criminal Code and items were seized from the

accused's house. The search warrant was subsequently quashed and the items seized

were ordered to be returned to the accused. The police applied for and obtained a

general warrant, under section 487.01 of the Criminal Code to "re-seize the items

previously seized from the respondent, upon their return to the respondent's counsel

at the offices of the RCMP in Cornwall later the same day." The Ontario Court of

Appeal upheld the validity of the search warrant and summarized the nature and

effect of general warrants, at pages 379 to 380, as follows:

The following aspects of s.487.01 are noteworthy:

(a) The power to issue warrants under the section is limited to

provincial court judges and superior court judges. It is not

extended to justices of the peace;

(b) An issuing judge is not bound by the strictures of other warrant

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provisions, but rather is governed by "the best interests of the

administration of justice."

(c) Whereas s.487 is limited to searching a building, receptacle or

a place for a specified thing and to bringing that thing or reporting

with respect to it to the court, s.487.01 authorizes a court to issue

a warrant to "use any device or investigative technique or

procedure or do any thing described in the warrant." Thus,

s.487.01 is both more specific and more general than s.487.

(d) The section authorizes warrants relating to offences not yet

committed.

(e) Apart from its location in proximity to "device or investigative

technique or procedure", there is nothing in the context to suggest

that "any thing" should read ejusdem generis. More specifically,

"any thing" is not modified by the word "similar" or the phrase

"of the same nature" or anything resembling them.

(f) Unlike s.487, s.487.01(3) and (4) provide that the judge may

make the issuance of the warrant conditional upon such terms and

conditions as she or she considers advisable.

(g) Section 487.01 does not provide simply for seizing things

which are evidence, contraband or instumentalities, but rather it

provides for the doing of any thing which will yield information

concerning an offence, thus paralleling the breadth of the

informational privacy interests protected by s.8 of the Charter.

See R. v. Plant, [1993] 3 S.C.R. 281 at 296-297, 84 C.C.C. (3d)

203.

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THE INFORMATION TO OBTAIN A GENERAL WARRANT CHECKLIST

(SECTION 487.01)

THE INFORMATION TO OBTAIN MUST BE:

IN WRITING; AND

UNDER OATH

IT MUST SATISFY THE JUDGE THAT THERE ARE REASONABLE

GROUNDS TO BELIEVE THAT:

AN OFFENCE HAS BEEN OR IS SUSPECTED TO HAVE BEEN

COMMITTED

AGAINST THE CRIMINAL CODE OF CANADA OR ANY OTHER ACT

OF PARLIAMENT

AND THAT THERE ARE REASONABLE GROUNDS TO BELIEVE THAT:

INFORMATION CONCERNING THE OFFENCE WILL BE OBTAINED;

THROUGH THE USE OF A TECHNIQUE, DEVICE, PROCEDURE, OR

BY DOING ANYTHING;

IF NOT AUTHORIZED, BY THE GENERAL WARRANT, WOULD

CONSTITUTE AN UNREASONABLE SEARCH OR SEIZURE;

THAT IS IN THE BEST INTERESTS OF THE ADMINISTRATION OF

JUSTICE TO ISSUE THE WARRANT; AND

THERE IS NO OTHER PROVISION IN THE CRIMINAL CODE OR ANY

OTHER ACT OF PARLIAMENT THAT PERMITS THE TECHNIQUE,

DEVICE, PROCEDURE OR THE THING TO BE DONE.

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THE GENERAL WARRANT CHECKLIST

THE SEARCH WARRANT MUST BE:

IN WRITING

AUTHORIZING A PEACE OFFICER

TO USE

A DEVICE;

A TECHNIQUE;

A PROCEDURE;

OR

DO ANYTHING.

SEARCH OF A PERSON

IF AUTHORIZED, THE GENERAL WARRANT CANNOT PERMIT

INTERFERENCE WITH ANY PERSON'S BODILY INTEGRITY.

THE EXECUTION OF THE WARRANT-REASONABLE CONDITIONS

WARRANT MUST CONTAIN SUCH TERMS AND CONDITIONS THAT THE

ISSUING JUDGE CONSIDERS ADVISABLE TO ENSURE THAT THE SEARCH

OR SEIZURE IS REASONABLE.

COVERT ENTRY

COVERT ENTRY AND SEARCH AUTHORIZED

IF SO, GENERAL WARRANT MUST CONTAIN A CONDITION REQUIRING

THAT NOTICE OF THE COVERT ENTRY AND SEARCH, WITHIN A

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SPECIFIED TIME AFTER THE EXECUTION OF THE GENERAL WARRANT,

BE GIVEN.

EXTENSIONS

MAXIMUM PERIOD MAY NOT EXCEED THREE YEARS

AFFIDAVIT SETTING OUT REASONS FOR THE REQUESTED EXTENSION

OF NOTICE OF COVERT ENTRY

INTERESTS OF JUSTICE WARRANT THE GRANTING OF AN EXTENSION.


WARRANT REQUIRES ENTRY INTO PROPERTY IN ANOTHER PROVINCE

OR

THE ASSISTANCE OF ANOTHER PERSON, PURSUANT TO SECTION

487.02 IS REQUIRED (SEE ASSISTANCE ORDERS CHECKLIST)

APPLICATION TO A JUDGE IN THE OTHER PROVINCE TO ENDORSE

ENDORSED BY A JUDGE IN THE OTHER PROVINCE

CAN BE EXECUTED IN THE OTHER PROVINCE.

JURISDICTION

CANNOT BE ISSUED BY A JUSTICE. ONLY A PROVINCIAL COURT

JUDGE, A JUDGE OF THE SUPERIOR COURT OF CRIMINAL JURISDICTION

OR A "JUDGE" AS DEFINED IN SECTION 552 OF THE CRIMI9NAL CODE,

CAN ISSUE.

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VIDEO SURVEILLANCE WARRANT

(SECTION 487.01(4))

Section 487.01(4) of the Criminal Code allows for video surveillance warrant to be

issued. This is a form of a general warrant and therefore a justice does not have

jurisdiction to issue one. It can only be issued by a Provincial Court Judge or a judge

of a superior court of criminal jurisdiction or a "judge" as defined in section 552 of

the Criminal Code. The provisions which relate to general warrants apply. This type

of general warrant allows a provincial court judge to authorize:

1. a peace officer;

2. to observe any person engaged in any activity to which a reasonable

expectation of privacy exists;

3. by means of a television camera or other similar electronic device.

The video warrant must contain such terms and conditions as the judge considers

advisable to ensure, "as much as possible" that the privacy of the suspect or any other

person is respected.

The definition of "offence" in sections 183, 183.1, 184.2, 184.3, 185 to 188.2, 189(5),

190, 193, 194 and 196 applies to video surveillance warrants. Therefore, it has more

limited application than a general warrant issued under s. 487.01(1) of the Criminal

Code. The offences to which a video surveillance warrant can be issued are listed in

the section 487.01(5).

TELEWARRANT

A section 487.01(4) video surveillance warrant can, as a result of section 487.01(7)

be obtained by the telewarrant process.

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VIDEO SURVEILLANCE WARRANT CHECKLIST

(SECTION 487.01(4))

CAN ONLY BE ISSUED BY A PROVINCIAL COURT JUDGE, OR A JUDGE

OF A SUPERIOR COURT OF CRIMINAL JURISDICTION OR A JUDGE AS

DEFINED IN SECTION 552 OF THE CRIMINAL CODE

IT IS A FORM OF GENERAL WARRANT, ISSUED PURSUANT TO SECTION

487.01(4), (SEE GENERAL WARRANT CHECKLIST)

CAN ONLY BE ISSUED IN RELATION TO ONE OF THE OFFENCES SET

OUT IN SECTION 487.01(5).

THE WARRANT AUTHORIZES

A PEACE OFFICER

TO OBSERVE

BY MEANS OF A TELEVISION CAMERA OR OTHER SIMILAR

ELECTRONIC DEVICE

ANY PERSON

ENGAGED IN AN ACTIVITY

TO WHICH THEY HAVE A REASONABLE EXPECTATION OF PRIVACY.

THE CONDITIONS

MUST CONCLUDE ANY CONDITIONS THE JUDGE CONSIDERS

ADVISABLE TO ENSURE THAT THE PRIVACY OF THE SUSPECT OR ANY

OTHER PERSON IS RESPECTED AS MUCH AS POSSIBLE.

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OFFENCE DEFINITION

THE DEFINITION OF OFFENCE IN SECTIONS:

183;

183.1;

184.2;

184.3;

185-188.2;

189(5);

190;

193; and

194 – 196

APPLIES TO A VIDEO SURVEILLANCE WARRANT.

TELEWARRANTS

CAN BE OBTAINED THROUGH TELEWARRANT PROVISIONS.


CAN BE ENDORSED BY A PROVINCIAL COURT JUDGE AND EXECUTED

IN ANOTHER PROVINCE.

JURISDICTION

CANNOT BE ISSUED BY A JUSTICE. ONLY A PROVINCIAL COURT

JUDGE, A JUDGE OF THE SUPERIOR COURT OF CRIMINAL JURISDICTION

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OR A "JUDGE" AS DEFINED IN SECTION 552 OF THE CRIMINAL CODE CAN

ISSUE.

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DNA WARRANTS

(SECTION 487.05)

A section 487.05 Criminal Code DNA warrant can only be issued by a Provincial

Court Judge as defined in section 487.04 of the Criminal Code. Neither a justice nor

a judge of a superior court of criminal jurisdiction has the authority to do so.

Such warrants must be based on an ex parte application, in Form 5.01. The

information to obtain must be on oath and it must satisfy the Provincial Court Judge,

that there are reasonable grounds to believe, that:

1. a "designated offence", as defined in section 487.04 of the Criminal Code,

has been committed (not will be committed); and

2. a "bodily substance" has been found or obtained:

i. at the place where the offence was committed;

ii. on or within the body of the victim of the offence;

iii. or anything worn or carried by the victim at the time the offence was

committed; or

iv. on or within the body of any person or thing or at any place associated

with the commission of the offence.

If satisfied that a bodily substance has been found in one of those places, the

Provincial Court Judge must then be satisfied that there are reasonable grounds to

believe that:

1. a person committed the offence or was a "party to the offence"; and

2. DNA analysis, from the person will provide evidence that the bodily

substance found, at one of the listed places, is from the person who committed

or was a party to the commission of the offence.

The Provincial Court Judge must also be satisfied that it is in the "best interests of the

administration of justice" to issue a DNA warrant (see R. v. Murrins (2002), 162

98

C.C.C. (3d) 412 (N.S.C.A.)). If the judge is satisfied, then the warrant may be issued

in Form 5.02, and it can authorize:

1. the taking from the person;

2. for the purpose of DNA analysis;

3. any number of samples of one or more bodily substances;

4. that are required for analysis.

In R. v. Briggs (2001), 157 C.C.C. (3d) 38 and R. v. P.R.F. (2001), 161 C.C.C. (3d)

275, the Ontario Court of Appeal considered, in the context of sections 487.05(1)(b)

and 487.052 of the Criminal Code, the meaning to be given to the words best interests

of the administration of justice." The Court concluded, in R. v. P.R.F., at paragraph

25, that:

On balance, I would expect that in the vast majority of cases it would be

in the best interests of justice to make the order under s. 487.051(1)(b)

and 487.052, as the case may be. This follows simply from the nature

of the privacy and security of the personal interests involved, the

important purposes served by the legislation and, in general, the

usefulness of DNA evidence in exonerating the innocent and solving

crimes in myriad of situations.

The bodily substances must be taken in accordance with section 487.06(1) of the

Criminal Code. That section requires that the samples be taken by a peace officer or

a person under a peace officer's direction. The samples must be taken by one of the

following means:

1. the plucking of individual hairs from the person, including the root sheath;

2. the taking of buccal swabs by swabbing the lips, tongue and inside cheeks

of the mouth to collect "epithelial cells"; or

3. the taking of blood by pricking the skin with a sterile lancet.

Epithelial cells are a membranous cellular tissue that lines the inside of our mouths

99

and produces secretions.

The warrant "shall" contain any terms and conditions the judge considers advisable

to ensure that the taking of the samples "is reasonable in the circumstances."

CRITERIA

Section 487.05(2) of the Criminal Code requires the judge to "have regard to all

relevant matters" including, but not limited to:

1. the nature of the offence and the circumstances under which it was

committed; and

2. whether or not a peace officer, by virtue of his or her training or experience

or another person, under the direction of a peace officer, is able to take a bodily

substance by means of one of the investigative techniques set out in section

487.06(1) of the Criminal Code.

In R. v. Mackey, 2020 ONCA 466, July 20, 2020, the Ontario Court of Appeal

considered the prerequisites for the issuing of a DNA warrant pursuant to section

487.05(1) of the Criminal Code. The Court of Appeal held that for a DNA warrant to

be issued, there must be reasonable grounds to believe that (at paragraph 52):

a) A designated offence has been committed;

b) A bodily substance has been found or obtained at specified places, including

at the place where the offence was committed, or at any place associated with

the commission of the offence;

c) The person targeted by the warrant was a party to the offence; and

d) Forensic DNA analysis of a bodily substance from that person will provide

evidence about whether the bodily substance referred to in (b) was from that

person… The judge must also be satisfied that it is in the best interests of the

administration of justice to issue the warrant: Criminal Code, s. 487.05(1).

100

TELEWARRANT

The provisions in section 487.1 of the Criminal Code, for the obtaining of warrants

by telephone or other means of telecommunication, apply to DNA warrants (see

section 487.05(3)).

101

COLLECTION OF ADDITIONAL BODILY SUBSTANCES

(SECTION 487.091)

If a DNA profile could not be derived from the samples obtained as a result of a

DNA order pursuant to sections 487.051, 487.052, or authorization under section

487.055 of the Criminal Code, an ex parte application can be made pursuant to

section 487.091, in Form 5.08, for an order authorizing the taking of additional bodily

substances for DNA analysis. The authorization is in Form 5.09 and it authorizes the

taking of any number of additional bodily substances by means of the investigative

procedure set out in section 487.061 of the Criminal Code.

Only a Provincial Court judge can issue such a section 487.091 Criminal Code

authorization. The application must state the reasons why a DNA profile could not

be derived under the initial warrant and it must be made "within a reasonable time

after it is determined that a DNA profile could not be derived."

Section 487.091(3) of the Criminal Code incorporates the provisions set out in

sections 487.055(4) to (10), with the deletion of the words "referred to in subsection

(1) who is on conditional release" found in section 487.055(4) of the Criminal Code,

to compel the attendance of persons not in custody.

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THE INFORMATION TO OBTAIN A DNA WARRANT CHECKLIST

(SECTION 487.05)

THE INFORMATION TO OBTAIN MUST:

BE ON OATH IN FORM 5.01;

AND

OBTAINED EX PARTE

IT MUST CONTAIN REASONABLE GROUNDS TO BELIEVE THAT:

AN OFFENCE LISTED IN SECTION 487.04 OF THE CODE HAS BEEN

COMMITTED

AND THAT

A BODILY SUBSTANCE HAS BEEN FOUND OR OBTAINED:

AT THE PLACE WHERE THE OFFENCE WAS COMMITTED

OR

ON OR WITHIN THE BODY OF THE VICTIM OF THE OFFENCE

OR

ON ANYTHING WORN OR CARRIED BY THE VICTIM AT THE

TIME THE OFFENCE WAS COMMITTED

OR

ON OR WITHIN THE BODY OF ANY PERSON OR THING OR

AT ANY PLACE ASSOCIATED WITH THE COMMISSION OF THE

OFFENCE

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AND THAT:

A PERSON WAS A "PARTY TO THE OFFENCE"

AND THAT:

FORENSIC DNA ANALYSIS OF THE BODILY SUBSTANCE WILL

PROVIDE EVIDENCE ABOUT WHETHER THE SUBSTANCE WAS

FROM THAT PERSON

AND THAT:

IT IS IN THE BEST INTERESTS OF JUSTICE TO ISSUE A DNA

WARRANT.

THE CRITERIA

THE JUDGE MUST CONSIDER:

ALL RELEVANT MATTERS, INCLUDING:

THE NATURE AND CIRCUMSTANCES OF THE OFFENCE;

AND

WHETHER OR NOT THERE IS:

A PEACE OFFICER, BY VIRTUE OF HIS OR HER TRAINING OR

EXPERIENCE ABLE TO TAKE THE BODILY SUBSTANCE IN

THE MANNER PRESCRIBED BY S.487.06(1) OF THE CODE;

OR

ANOTHER PERSON WHO IS ABLE, BY VIRTUE OF TRAINING

OR EXPERIENCE, TO TAKE THE SAMPLES IN ACCORDANCE

WITH S.487.06(1), UNDER THE DIRECTION OF A PEACE

OFFICER.

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THE DNA WARRANT CHECKLIST

THE SEARCH WARRANT MUST BE:

IN FORM 5.02

IT AUTHORIZES THE TAKING OF:

ONE OR MORE SAMPLES OF A BODILY SUBSTANCE

FOR DNA ANALYSIS

BY MEANS OF THE TECHNIQUES SET OUT IN S.487.06(1).

SECTION 487.06(1)

THE SAMPLES OF BODILY SUBSTANCES MUST BE OBTAINED BY:

THE PLUCKING OF INDIVIDUAL HAIRS, INCLUDING THE ROOT

SHEATH;

OR

THE TAKING OF BUCCAL SWABS, BY SWABBING THE LIPS,

TONGUE AND INSIDE CHEEKS TO COLLECT EPITHELIAL CELLS

OR

THE TAKING OF BLOOD BY PRICKING THE SKIN SURFACE WITH

A STERILE LANCET.

TELEWARRANTS

THE PROVISIONS FOR THE OBTAINING OF WARRANTS BY TELEPHONE

OR OTHER MEANS OF COMMUNICATION APPLY (s.487.051(3) and 487.1).

105


CAN BE ENDORSED BY A PROVINCIAL COURT JUDGE AND EXECUTED

IN ANOTHER PROVINCE


JURISDICTION

ONLY A PROVINCIAL COURT JUDGE CAN ISSUE.

106

COLLECTION OF

ADDITIONAL BODILY SUBSTANCES CHECKLIST

(SECTION 487.091)

THE APPLICATION MUST BE:

EX PARTE

IN FORM 5.08

SEEKING AUTHORIZATION TO TAKE ADDITIONAL BODILY

SUBSTANCES.

THE APPLICATION MUST:

STATE THE REASONS WHY A DNA PROFILE COULD NOT BE DERIVED

AND

BE MADE WITHIN A REASONABLE TIME OF THIS DETERMINATION

BEING MADE.

THE AUTHORIZATION MUST BE:

IN FORM 5.09

AUTHORIZES THE TAKING OF ANY NUMBER OF ADDITIONAL

SAMPLES

MUST BE BY MEANS OF THE INVESTIGATIVE PROCEDURES SET OUT

IN S. 487.061.

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ANCILLARY ORDERS-ASSISTANCE ORDERS

(SECTION 487.02)

Section 487.02 of the Criminal Code allows the justice or a judge that has issued a

search warrant under the Criminal Code, or issued a section 492.2(2) Criminal Code

order (the provision of telephone records in relation to a number recorder warrant),

to also grant an assistance order requiring "any person to provide assistance, where

that person's assistance is required to give effect to the warrant."

The application for an assistance order can be included in the information to obtain

the search warrant to which the assistance order is being requested, or it can be made

separately. As with all applications for an order, the justice or judge must ensure that

the officer has set out reasonable grounds for the order to be issued and the

information seeking the assistance order must be under oath.

In National Post v. Canada (2004), 69 O.R. (3d) 427 (Ont. S.C.J.), it was held that a

"general warrant and assistance order can be used in combination to effectively

require a third person to deliver items to police."

In R. v. Talbot, 2017 ONCJ 814, November 24, 2017, the police arrested the accused

and seized a cellular telephone from him. They subsequently obtained a section 487

Criminal Code search warrant to search the telephone. Upon attempting to execute

the search warrant the police learned that the telephone was locked using a “swipe

pattern.” The police were unable to access the contents of the telephone. The police

applied pursuant to section 487.02 of the Criminal Code for an assistance order in

relation to the telephone. The police sought to have the accused ordered to provide

them with assistance in executing the section 487 warrant by unlocking the telephone.

The application was denied. The application judge held that though section 487.02

applies to an accused person, ordering the accused “to actively participate in the

investigation against him violates his s. 7 Charter rights.”

Section 487.02 makes no reference to telewarrants, but it could be argued that since

they provide assistance to an issued warrant, if the warrant can be obtained by

telewarrant, then so can the assistance order.

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ASSISTANCE ORDER CHECK LIST

YOU ISSUED THE WARRANT UNDER THE CRIMINAL CODE (OR MADE

A SECTION 492.2(2) CRIMINAL CODE ORDER);

AND

YOU ARE SATISFIED THAT A PERSON'S ASSISTANCE IS REQUIRED TO

GIVE EFFECT TO THE WARRANT/ORDER.

YOU CAN ORDER THAT "ANY PERSON" PROVIDE ASSISTANCE.

109

SEALING/PROHIBITION OF ACCESS ORDERS

(SECTION 487.3)

Once a search warrant is executed, the public has a right to have access to the

information to obtain the search warrant. However, section 487.3 of the Criminal

Code allows a justice or a judge to order that "access to and the disclosure of

information relating to the warrant" be prohibited. This section applies to all warrants

issued under the Criminal Code or any other Act of Parliament, including a section

529 or 529.4 authorization (warrant to enter a residence to arrest) and Preservation

Orders. However, it does not apply to Preservation Demands (see section 487.012).

TIMING OF THE APPLICATION:

The order can be made at "the time an application" for a search warrant is made or

"at a later time."

THE GROUNDS FOR SUCH AN ORDER:

In order to issue a sealing order, the judge must be satisfied that disclosure of the

information to obtain would:

i. subvert the ends of justice; or

ii. information "might be used for an improper purpose" and

iii. the reason for the request for a non-disclosure (or sealing) order "outweighs

in importance the access to the information."

Section 487.3(2) of the Criminal Code lists the following as results, which would, if

caused as a result of disclosure, subvert the ends of justice:

i. compromising the identity of a confidential informant;

ii. compromising an ongoing investigation;

iii. endangering a person engaged in "intelligence-gathering techniques" and

thereby prejudicing future investigations in which similar techniques would be

used;

110

iv. prejudice to the interests of an innocent person; or

v. for "any other sufficient reason."

PROCEDURE:

The application should be in writing and include an affidavit setting out the basis

upon which the request for the order is being made. The Criminal Code does not

require that the application be in writing or that an affidavit be prepared but it does,

in section 487.3(3), refer to the "documents relating to the application."

If the judge issues the sealing order, then all the documents relating to both the

application for the sealing order and the warrant must be immediately, upon the

granting of the application, be placed in a "sealed packet" and kept in "the custody of

the court in a place to which the public has no access or in any other place that the

justice or judge may authorize." This is subject to any "terms and conditions" the

judge or justice may include.

The order should be attached to the outside of the packet so that if a request is made

by a member of the public to view the information to obtain, the order prohibiting

such access will be readily apparent and so it can be retrieved if the warrant or sealing

order are subject to challenge.

VARIATION APPLICATIONS

Section 487.3(4) of the Criminal Code allows for an application to be made to the

judge or justice that issued the non-disclosure order, or the judge of the court before

which any proceedings arising out of the investigation in relation to the warrant may

be held, to terminate or vary the order. This often occurs when a time limitation has

been placed on the sealing order and the police are seeking to have it extended.

In Phillips v. Vancouver Sun (2004), 182 C.C.C. (3d) 483 (B.C.C.A.), it was held

that a Provincial Court Judge has the jurisdiction to vary a sealing order made by a

justice.

The Court of Appeal also concluded that the Provincial Court Judge's decision to vary

the sealing order was correct. It described the test to be applied as follows (at

111

paragraphs 68-69):

It is apparent from the language of this section that it was drafted to accord

with Dickson J.'s judgment in MacIntyre. In my view, it also reflects the

Charter principles in issue here; namely, the principles of freedom of

expression and freedom of the press encompassed under s. 2(b) of the Charter,

and the public interest in protecting individual privacy encompassed under ss.

7 and 8 of the Charter. The section does so by starting from the presumption

of openness referred to in MacIntyre, taking into account the well-recognized

concerns for the proper administration of justice including the protection of

informants and the need to preserve the integrity of ongoing investigations, and

considering the protection of the privacy interests of innocent persons. The

privacy interests are protected by taking into account any prejudice that may

be occasioned to innocent persons in the event disclosure is granted, as well as

whether the disclosure of the information could be used for an improper

purpose.

The ultimate question to be resolved by the balancing of interests under s.

487.3 is whether any of the interests subsumed under s-s. 487.3(1)(a), which

incorporates the grounds set forth in s-s. 487.3(2), "outweighs in importance

the access to the information."

TIME LIMITS

Section 487.3(3) of the Criminal Code refers to "the duration of the prohibition order"

as being a condition or term which the judge or justice can impose.

In R. v. Mentuck, [2001] 3 S.C.R. 442, the Supreme Court of Canada ruled that

prohibition orders, relating to the reporting of evidence, identifying investigative

police techniques and police officers, should contain limitations upon the length of

time in which the prohibition is to be in effect. In R. v. Gallant, [2004] N.J. No. 113

(P.C.), it was held that the reasoning in Mentuck applied to orders issued pursuant to

s.487.3 of the Criminal Code. Also see R. v. Canadian Broadcasting

Corporation, 2008 ONCA 397.

In Gallant, a number of prohibition orders were issued and they contained time limits.

These time periods expired. The accused applied for access to the sealed documents.

The application judge concluded that access to the sealed documents should not be

112

granted as doing so could reveal the identity of confidential informants. However, it

was ordered that the Crown was to provide the accused with edited copies of the

sealed documents and that it was to apply within fourteen days to have the original

orders varied.

THE TEST

In Toronto Star Newspaper Ltd. v. Ontario, [2005] 2 S.C.R. 188, the Supreme

Court of Canada held that in considering a sealing order, a justice or a judge must

consider whether:

...such an order is necessary in order to prevent a serious risk to the proper

administration of justice because reasonably alternative measures will not

prevent the risk; and the salutary effects of the publication ban outweigh the

deleterious effects on the rights and interests of the parties and the public,

including the effects on the right to free expression, the right of the accused to

a fair and public trial, and the efficacy of the administration of justice.

TELEWARRANTS:

Section 487.3 makes no reference to telewarrants, but it could be argued that since

they provide assistance to an issued warrant, if the warrant can be obtained by

telewarrant, then so can the assistance order.

PRODUCTION ORDERS AND PRESERVATION ORDERS

If a production order is issued, an order (in Form 5.00.91) prohibiting the disclosure

of the existence or contents of the production order can be issued by way of an

application made pursuant to section 487.0191.

A prohibition order is valid “during the period set out in the order” (see section

487.0191(1)). Thus, it appears that any prohibition order issued pursuant to section

487.0191 must contain a specified time frame in which the order is to be in force.

Compare this with a section 487.3 prohibition order, which contains no such time

limits.

The judge or justice who issues a section 487.0191 prohibition on disclosure order

(section 487.0191 does not indicate that this has to be the justice of judge who issued

113

the production order) must be satisfied that there are reasonable grounds to believe

that disclosure “would jeopardize the conduct of the investigation of the offence to

which the preservation demand or the preservation or production order relates” (see

section 487.091(2)). The application for the prohibition order must be by way of an

information under oath in Form 5.009 (see section 487.091(2)).

This is a slightly different test than the one contained within section 487.3(1) of the

Criminal Code.

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SEALING ORDER/PROHIBITION OF ACCESS ORDER CHECKLIST

SUCH AN APPLICATION CAN BE MADE IN RELATION TO ANY SEARCH

WARRANT ISSUED UNDER THE CRIMINAL CODE:

AT THE TIME THE WARRANT IS ISSUED,

OR

AT ANY TIME.

FORM OF THE APPLICATION

THE APPLICATION FOR THE ORDER SHOULD BE IN WRITING AND

HAVE AN AFFIDAVIT ATTACHED.

THE APPLICATION/AFFIDAVIT SHOULD SET OUT THE GROUNDS FOR

THE NON-DISCLOSURE ORDER.

THE APPLICATION MUST ESTABLISH THAT DISCLOSURE WOULD:

SUBVERT THE ENDS OF JUSTICE:

BY COMPROMISING THE IDENTITY OF A CONFIDENTIAL

INFORMER;

OR

115

BY COMPROMISING AN ONGOING INVESTIGATION;

OR

BY ENDANGERING A PERSON ENGAGED IN AN INTELLIGENCE

GATHERING TECHNIQUE AND THEREBY PREJUDICE FUTURE

INVESTIGATIONS IN WHICH A SIMILAR TECHNIQUE WOULD BE

USED;

OR

BY PREJUDICING THE INTERESTS OF AN INNOCENT PERSON;

OR

ANY OTHER SUFFICIENT REASON;

OR

DISCLOSURE MIGHT RESULT IN THE INFORMATION BEING

USED FOR AN IMPROPER PURPOSE.

THE TEST

THE JUSTICE MUST BE SATISFIED THAT THE REASON GIVEN FOR THE

NON-DISCLOSURE REQUEST OUTWEIGHS THE IMPORTANCE OF

PUBLIC ACCESS TO THE INFORMATION TO OBTAIN THE SEARCH

WARRANT.

TIME LIMITATIONS

DOES THE ORDER HAVE A SPECIFIED TIME PERIOD IN WHICH IT

REMAINS IN FORCE.

THE PROCEDURE AFTER THE NON-DISCLOSURE ORDER IS MADE

ALL THE DOCUMENTS IN RELATION TO THE NON DISCLOSURE

APPLICATION (EXCEPT THE ORDER), THE INFORMATION TO OBTAIN

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THE SEARCH WARRANT AND THE SEARCH WARRANT, ARE PLACED:

IMMEDIATELY INTO A SEALED PACKET;

AND

THE ORDER IS ATTACHED TO THE OUTSIDE;

AND

THE PACKET IS KEPT IN THE CUSTODY OF THE COURT AND IN

AN AREA THE PUBLIC HAS NO ACCESS TO (UNLESS OTHERWISE

ORDERED).

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PRODUCTION ORDERS

(SECTIONS 487.014 to 487.018)

The Criminal Code contains five different types of production orders:

(1) “general production orders” (section 487.014);

(2) production orders to “trace specified communications” (section 487.015);

(3) production orders to obtain “transmission data” (section 487.016);

(4) production orders to obtain “tracking data” (section 487.017); and

(5) production orders to obtain “financial data” (section 487.018).

In R. v. July, 2020 ONCA 492, the accused pleaded guilty to a firearms offence after

a Charter application was dismissed. A portion of the evidence presented against

him was obtained through the obtaining of text messages as a result of the execution

of a production order. The accused appealed from conviction, seeking to withdraw

his guilty plea. He argued that “his right to be free from unreasonable search and

seizure under s. 8 of the Canadian Charter of Rights and Freedoms was violated

because the police failed to establish investigative necessity when they obtained a

production order for the search and seizure of the appellant’s historical text

messages”.

The appeal was dismissed. The Ontario Court of Appeal compared production orders

to wiretaps. It noted, at paragraph 64, that wiretaps “are more intrusive of privacy

interests than production orders for historical text messages, a reality recognized by

Parliament when it made investigative necessity a statutory requirement in s.

186(1)(b) but did not include investigative necessity in s. 487.012 or its successor,

s. 487.014’.

The Court of Appeal concluded that investigative necessity is not a constitutional

requirement for production orders for historical text messages (at paragraphs 65 and

66):

…the scope of a production order for historical text messages may be focused,

limited, and less speculative than a broad wiretap authorization. In Jones,

Côté J. explicitly drew a distinction between wiretaps that give police access

to real-time information and production orders for previously stored records,

noting that the latter do not trigger the same concerns: Jones, at para. 74.

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As the jurisprudence does not require that investigative necessity be a

constitutional requirement for wiretaps, it follows that investigative necessity

is not a constitutional requirement for production orders for historical text

messages.

General Principles:

Before considering these specific production orders, there are a number of general

provisions which apply to all production orders, including jurisdiction to issue.

Jurisdiction:

All of the new production orders can be issued by a justice, a provincial court judge

or a judge of a superior court of criminal jurisdiction.

Conditions:

Any production order issued “may contain any conditions that the justice or judge

considers appropriate including, in the case of an order made under section 487.014,

conditions to protect a privileged communication between a person who is qualified

to give legal advice and their client” (see section 487.019(1)).

Extra Territorial Effect:

These production orders have effect throughout Canada and interestingly, do not

have to be endorsed if executed outside of the province in which they were issued

(see section 487.019(2)).

Variation:

Any production order issued can be varied or revoked by application made by an

officer in Form 5.0081, pursuant to section 487.019(3).

In addition, any person, financial institution or entity subject to a production order

can apply “to the justice or judge who made the order — or to a judge in the judicial

district where the order was made — to revoke or vary the order” (see section

487.0193(1)). In contrast, an application made by an officer pursuant to section

487.019(3), does not have to be made to any particular judge or justice and is not

limited to any judicial district.

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Prohibition on Disclosure:

If a production order is issued, an order (in Form 5.00.91) prohibiting the disclosure

of the existence or contents of the production order can be issued by way of an

application made pursuant to section 487.0191.

A prohibition order is valid “during the period set out in the order” (see

487.0191(1)). Thus, it appears that any prohibition order issued pursuant to section

487.0191 must contain a specified time frame in which the order is to be in force.

Compare this with a section 487.3 prohibition order, which contains no such time

limits.

The judge or justice who issues a section 487.0191 prohibition on disclosure order

(section 487.0191 does not indicate that this has to be the justice of judge who issued

the production order) must be satisfied that there are reasonable grounds to believe

that disclosure “would jeopardize the conduct of the investigation of the offence to

which the preservation demand or the preservation or production order relates” (see

section 487.091(2)). The application for the prohibition order must be by way of an

information under oath in Form 5.009 (see section 487.091(2)).

This is a slightly different test than the one contained within section 487.3(1) of the

Criminal Code.

Prior to the enactment of the Protecting Canadians from Online Crimes Act, section

487.3 applied to production orders issued pursuant to section 487.012 of the

Criminal Code (now repealed). However, section 22(1) of the Protecting Canadians

from Online Crimes Act amended section 487.3(1) to incorporate sections 487.013

to 487.018 of the Criminal Code (the new preservation order and all of the new

production order provisions). Thus, there appears to be two provisions in which a

prohibition on disclosure order can be issued and they have different tests.

Report to a Justice:

Sections 489.1 and 490 of the Criminal Code (retention of seized items and a report

to justice) do not apply to a document that is produced under an order issued pursuant

to any of sections 487.014 to 487.018 (see section 487.0192(5)).

In R. v. Jones, 2016 ONCA 543, it was held that that a production order was

appropriate for a search for sent text messages.

Having set out the provisions which apply to all of the new production orders, let us

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now look at specific production orders, commencing with the general production

order.

(1) A General Production Order:

Section 487.014 allows a judge or justice to issue a general production order (in

Form 5.005) requiring “a person to produce a document that is a copy of a document

that is in their possession or control when they receive the order, or to prepare and

produce a document containing data that is in their possession or control at that

time.”

An order made under section 487.014 must require the person to produce the

document to the officer “named in the order within the time, at the place and in the

form specified in the order” (see section 487.0192(1)).

The issuing of such an order requires that the justice or judge be satisfied by

information on oath in Form 5.004 that there are “reasonable grounds to believe”

that:

(a) an offence has been or will be committed under this or any other Act of

Parliament; and

(b) the document or data is in the person’s possession or control and will

afford evidence respecting the commission of the offence.

A person who is under investigation for the offence referred to may not be made

subject to such an order (see section 487.014(4)).

(2) Production Order to Trace Specified Communications:

Section 487.015 allows a judge or justice to issue an order (in Form 5.006) requiring

a person to prepare and produce a document containing transmission data that will

“identifying a device or person involved in the transmission of a communication.”


document to the officer “named in the order as soon as feasible after they are served

with the order at the place and in the form specified in the order” (see section

487.0192(2)).


information on oath in Form 5.004 that there are “reasonable grounds to suspect”

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that:


Parliament;

(b) the identification of a device or person involved in the transmission of a

communication will assist in the investigation of the offence; and

(c) transmission data that is in the possession or control of one or more persons

whose identity is unknown when the application is made will enable that

identification.



(3) Production Order-Transmission Data:


a person to “prepare and produce a document containing transmission data that is in

their possession or control.”

Transmission data is defined in section 487.011 in the following manner:

“transmission data” means data that

(a) relates to the telecommunication functions of dialling, routing,

addressing or signalling;

(b) is transmitted to identify, activate or configure a device, including a

computer program as defined in subsection 342.1(2), in order to

establish or maintain access to a telecommunication service for the

purpose of enabling a communication, or is generated during the

creation, transmission or reception of a communication and identifies

or purports to identify the type, direction, date, time, duration, size,

origin, destination or termination of the communication; and

(c) does not reveal the substance, meaning or purpose of the

communication.


document to the officer “named in the order within the time, at the place and in the

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form specified in the order” (see section 487.0192(1)).



that:


Parliament; and

(b) the transmission data is in the person’s possession or control and will assist

in the investigation of the offence.



(4) Production Order to Obtain Tracking Data:


a person to produce a document containing “tracking data” that is in their possession

or control.

Tracking data is defined in section 487.011 in the following manner:

“tracking data” means data that relates to the location of a transaction,

individual or thing.



that:


Parliament; and

(b) the tracking data is in the person’s possession or control and will assist in

the investigation of the offence.



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(5) Production Order to Obtain Financial Data:


a “financial institution, as defined in section 2 of the Bank Act, or a person or entity

referred to in section 5 of the Proceeds of Crime (Money Laundering) and Terrorist

Financing Act”, to prepare and produce a document setting out the following data

that is in their possession or control when they receive the order:

(a) either the account number of a person named in the order or the name of a

person whose account number is specified in the order;

(b) the type of account;

(c) the status of the account; and

(d) the date on which it was opened or closed.

An order made under section 487.018 must require the financial institution to

produce the document to the officer “named in the order within the time, at the place

and in the form specified in the order” (see section 487.0192(1)).



that:


Parliament; and

(b) the data is in the possession or control of the institution, person or entity

and will assist in the investigation of the offence.

A “financial institution, person or entity” under investigation for the offence referred

to may not be made subject to such an order (see section 487.018(5)).

In Canadian Broadcasting Corp. v. Manitoba (Attorney General), [2009] M.J. No.

409 (C.A.), a production order was described as an order that compels: “third parties

in possession of information relevant to a criminal investigation to produce and

generate documents and data for law enforcement agencies.”

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TELEWARRANTS:

These provisions make no reference to telewarrants.

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GENERAL PRODUCTION ORDER CHECKLIST

(SECTION 487.014)

CAN BE APPLIED FOR BY A PEACE OFFICER OR PUBLIC OFFICER.

CAN ORDER THE PERSON:

TO PRODUCE A DOCUMENT THAT

IS A COPY OF A DOCUMENT THAT IS IN THEIR POSSESSION.

THE APPLICATION


BE EX PARTE (UNDER OATH, FORM 5.004);

SET OUT “REASONABLE GROUNDS” THAT:

AN OFFENCE HAS BEEN OR WILL BE COMMITTED;

INDICATE WHY THE DOCUMENTS OR DATA IN THE PERSON’S

CONTROL

WILL AFFORD EVIDENCE; AND

THE ORDER

(SECTION 487.014)

THE ORDER


CAN REQUIRE THE PERSON TO:

PRODUCE A DOCUMENT THAT IS A COPY OF A DOCUMENT IN

THEIR POSSESSION/CONTROL.

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PRODUCTION ORDER TO TRACE SPECIFIED COMMUNICATION

CHECKLIST

(SECTION 487.015)



TO PREPARE AND PRODUCE A DOCUMENT THAT

IDENTIFIES A DEVICE OR PERSON INVOLVED IN THE TRANSMISSION

OF A COMMUNICATION.

THE APPLICATION



SET OUT “REASONABLE GROUNDS TO SUSPECT” THAT:


IDENTIFY A PERSON OR DEVICE INVOLVED IN THE

TRANSMISSION OF A COMMUNICATION;

WHICH WILL ASSIST IN THE INVESTIGATION OF THE OFFENCE.

THE ORDER

(SECTION 487.015)

THE ORDER


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PREPARE AND PRODUCE A DOCUMENT CONTAINING

TRANSMISSION DATA.

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PRODUCTION ORDER-TRANSMISSION DATA CHECKLIST

(SECTION 487.016)




CONTAINS TRANSMISSION DATA.

THE APPLICATION





THE TRANSMISSION DATA IS IN A PERSON’S POSSESSION; AND;

IT WILL ASSIST IN THE INVESTIGATION OF THE OFFENCE.

THE ORDER

(SECTION 487.016)

THE ORDER



PREPARE AND PRODUCE A DOCUMENT CONTAINING

TRANSMISSION DATA.

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PRODUCTION ORDER-TRACKING DATA CHECKLIST

(SECTION 487.017)




CONTAINS TRACKING DATA.

THE APPLICATION





THE TRACKING DATA IS IN A PERSON’S POSSESSION; AND;


THE ORDER

(SECTION 487.017)

THE ORDER



PREPARE AND PRODUCE A DOCUMENT CONTAINING TRACKING

DATA.

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FINANCIAL DATA PRODUCTION ORDER CHECKLIST

(SECTION 487.018)


CAN ORDER “A FINANCIAL INSTITUTION”:

TO PREPARE AND PRODUCE A DOCUMENT SETTING OUT:

THE ACCOUNT NUMBER OF A PERSON NAMED IN THE ORDER;

THE TYPE OF ACCOUNT;

THE STATUS OF THE ACCOUNT;

THE DATE ON WHICH IT WAS OPENED OR CLOSED; AND/OR

INFORMATION CONFIRMING THE IDENTITY OF THE PERSON:

DATE OF BIRTH;

CURRENT ADDRESS; AND

ANY PREVIOUS ADDRESSES.

THE APPLICATION





THE DATA IS IN POSSESSION OF THE PERSON/INSTITUTION; AND;


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THE ORDER

(SECTION 487.018)

THE ORDER



TO PREPARE AND PRODUCE A DOCUMENT SETTING OUT:

THE ACCOUNT NUMBER OF A PERSON NAMED IN THE ORDER;

THE TYPE OF ACCOUNT;

THE STATUS OF THE ACCOUNT;

THE DATE ON WHICH IT WAS OPENED OR CLOSED; AND/OR

INFORMATION CONFIRMING THE IDENTITY OF THE PERSON:

DATE OF BIRTH;

CURRENT ADDRESS; AND

ANY PREVIOUS ADDRESSES.

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PRESERVATION ORDERS AND APPLICATIONS

(SECTIONS 487.012 and 487.013)

As a result of the enactment of the Protecting Canadians from Online Crimes Act,

the police (a peace officer or public officer) can, pursuant to section 487.012 of the

Criminal Code, demand that a person preserve “computer data” (defined in section

487.011 and 342.1(2) as: “means computer data representing instructions or

statements that, when executed in a computer system, causes the computer system

to perform a function”) that “is in their possession or control.”

This does not require judicial authorization. If the demand relates to an offence

under any Act of Parliament, the demand expires twenty-one days after the day on

which the demand was made.

PRESERVATION ORDERS

The police can also apply, pursuant to section 487.013 of the Criminal Code, to a

justice or “judge” (which is defined in section 487.011 as a “judge of a superior court

of criminal jurisdiction”) for an order requiring that a person “preserve computer

data that is in their possession or control.”

The information on oath must be in Form 5.002 and the justice or judge must be

satisfied:

(a) that there are reasonable grounds to suspect that an offence has been or

will be committed under this or any other Act of Parliament or has been

committed under a law of a foreign state, that the computer data is in the

person’s possession or control and that it will assist in the investigation of the

offence; and

(b) that a peace officer or public officer intends to apply or has applied for a

warrant or an order in connection with the investigation to obtain a document

that contains the computer data.

A judicially issued preservation order can contain conditions; be varied; and does

not require an endorsement to be executed outside of the province in which it was

issued (see section 487.019). It must be in Form 5.003.

In addition, an order prohibiting the disclosure of the existence or contents of a

preservation order or preservation application can be issued (in Form 5.00.91)

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pursuant to an application made under section 487.0191. Such an order can also be

issued pursuant to section 487.3 of the Criminal Code in relation to a preservation

order, but not a preservation application.

These provisions make no reference to telewarrants.

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PRESERVATION ORDER CHECKLIST

(SECTION 487.013)

THE APPLICATION CAN BE MADE BY A PEACE OFFICER OR PUBLIC

OFFICER.

THE APPLICATION CAN BE MADE TO A JUSTICE (PROVINCIAL COURT

JUDGE) OR A SUPREME COURT JUDGE.

THE ORDER CAN REQUIRE A PERSON TO PRESERVE COMPUTER

DATA.

THE INFORMATION TO OBTAIN

THE INFORMATION TO OBTAIN MUST BE IN FORM 5.002 AND SET OUT

THAT THERE ARE “REASONABLE GROUNDS TO SUSPECT” THAT:


THAT COMPUTER DATA IS IN THE PERSON’S

POSSESSION/CONTROL; AND

THE OFFICER INTENDS TO APPLY OR HAS APPLIED FOR A

WARRANT/ORDER IN CONNECTION WITH THE INVESTIGATION TO

OBTAIN THE DOCUMENT.

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THE ORDER

(SECTION 487.013)

THE ORDER MUST BE IN FORM 5.003.

THE ORDER REQUIRES A PERSON TO PRESERVE COMPUTER DATA.

IT EXPIRES IN NINETY DAYS.

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CONCLUSION

As can be seen from this review of search warrant provisions they are numerous and

contain significant variations in what is required for their issuance. As a result,

though the general principles set out at the beginning of the paper apply to all search

warrant provisions, the specific statutory language employed by the legislature in

the drafting of a search warrant provision requires specific attention.

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