General Warrants

Henry Waldock
Last updated:    2017.02.19

Use a General Warrant when there is no other statutory authority for the "technique, procedure or device or the doing of the thing" to authorize the search you want to do. s.487.01.(1)(c)  Telus Communications Company, 2013 SCC 16

Definitions

Section

487.01 of the Criminal Code

Court

A Judge of either the Supreme Court or Provincial Court

Authority

To use any device or investigative technique, or procedure, or

To do any thing described in the warrant which would constitute an unreasonable search or seizure

Prerequisites

(a) Reasonable and Probable Grounds

(a) Offence has been or will be committed

(a) Information concerning the offence will be obtained

(b) It is in the best interests of the administration of justice

(c) There is no other statutory authority permitting peace officers to do this search or seizure.  Ha, 2009 ONCA 340

Physical limits

(2) No interference with bodily integrity

Generic limits

(3) Warrant shall contain terms an conditions to ensure the search or seizure is reasonable

Covert Entry & Notice

(5.1) If the warrant authorizes covert entry, then the warrant must require notice be given to the people affected by the covert entry, at some point less than 3 years after the entry.

Surveillance limits

(4) When using TV cameras and other similar electronic devices, the warrant must contain limits which protect privacy of the target and third parties

(5) No such surveillance is allowed unless the offence(s) under investigation are listed in s.183

(5) Wiretap limitations apply:

One party consent

- a person may consent to be watched s.183.1

- but you require authorization for 1-party consent s.184.2

- telewarrant available for one-party consent s.184.3

Surveillance of knowns and unknowns (s.185 – 188.2)

- see Wiretap – a section of this website still under construction

Telewarrant

(7) Telewarrant is available because this section imports s.487.1

 

Conditions

Because courts limit powers of search and seizure only to that which you can justify, craft limiting conditions for the court to impose on you, so that defence counsel cannot later complain that you sought and obtained unnecessarily broad powers.

Techniques

Covert Entry - Sneak & Peek - Stay & Take

If you want to search covertly, then a General Warrant is your tool.  Ford 2008 BCCA 94; Ha, 2009 ONCA 340.

Useful information can be gathered by entering covertly, and arresting whoever shows up.  If you want to do that, make sure that the ITO spells out why and the warrant explicitly authorizes it.  Shin, 2015 ONCA 189.  If the arrest will occur in a residence, explain why a General Warrant will obtain information about the offence that a Feeney warrant would not.

Repeated Covert Entry over a Specified Time Period

A general warrant can authorize multiple entries over a specified time period for the purposes of gathering information concerning the offence. Ha, 2009 ONCA 340 (In that case the time period was 59 days.)

Simulated Theft to Stimulate Conversation

As part of a larger conspiracy, Mr Knight 2008 NLCA 67 transported drugs in a spare tire.  Police sought and obtained a general warrant permitting them to seize the tire, but make it look like a common theft.  They expected doing so would cause the conspirators to talk to each other about the conspiracy, and because they had wiretap authorizations to listen to those conversations, they expected that they would therefore obtain information about the offence.  The court found this was a proper use of s.487.01. (I think you should use s.25.1 for this kind of operation.)

Examine Intimate Places

A general warrant may authorize police to view and photograph genitals.  R. v. T.G.H., 2014 ONCA 460

A general warrant may authorize a bedpan vigil, to get drugs from inside a person, but may not authorize a detention for that purpose. Poirier, 2016 ONCA 582.

False Pretext Detention?

The Alberta Court of Appeal found that a General Warrant may authorize you to lie about why you stopped someone. Whipple, 2016 ABCA 232. I urge caution against relying on this decision because s.487.01 only authorizes activity which would involve search or seizure. Section 10(a) does not.

Video Surveillance - When do you need a General Warrant?

Setting up your video camera in a car parked on a public street should be okay without a warrant, whether you're recording or just observing.  But don't aim the camera into the house without judicial authority.

The big decision is Wong 60 CCC (3d) 460 (S.C.C.). - setting up video surveillance in a private hotel room requires prior judicial authorization.

Video surveillance of the closed cubicle of a public washroom violates expectations of privacy.  Silva, 1995 CanLII 7242 (ON SC).

Video recording from a car on a public street does not violate expectations of privacy.  Esfahanian Ershad, 1991 CanLII 281 (BC SC);  Bryntwick, 2002 CanLII 10941 (ON SC).

Can a provincial court judge issue a video warrant?  If it will intercept private communications, then no.  It's wiretap.  But what if it just watches activity?  The answer remains uncertain: Li, 2013 ONCA 81.

Learning from Other’s Mistakes

Don’t use the word “Surreptitious”.  Use “Covert” (Mero 2003 BCSC 964; Kuitenen & Ostiguy 2001 BCSC 677)

Don’t use a general warrant if you don’t have R & P grounds to believe that an offence was committed.  Kuitenen & Ostiguy 2001 BCSC 677

Assert that evidence “would be” obtained, not “may be” or “could be” obtained by use of the investigative technique.  Officers wanted to search Guilbride’s 2003 BCPC 177 residence, and copy any documentation he had of a conspiracy to import drugs.  The warrant they drafted for the judge said evidence “could be obtained” by reason of this search.  Trial judge says that imports a different test than the legislation “would be obtained”.  Note also the unnecessarily broad basket clauses.  Same problem in Kuitenen & Ostiguy 2001 BCSC 677.

However, police obtained general warrants to enter Mr Ford's 2008 BCCA 94 property to examine it for a large marijuana grow operation.  Section 487.01 permits a court to grant a general warrant if the judge is satisfied that information concerning the offence "will be obtained". Unfortunately, the officer wrote in the form of general warrant that the judge was satisfied that information "could be obtained".  Relying on other words in the warrant, the Court of Appeal found that the issuing judge really meant "will be", but commented that police officers drafting judicial orders should follow the language of the legislation as much as possible.

Police officers wanted to examine, but not seize, objects in a possible grow-op.  Judge says that this could have been done under s.487 or CDSA s.11. (Mero 2003 BCSC 964)  (Quaere: if you didn’t want to seize anything, then how could you go to s.487?).

Notice of Covert Entry

Police officers obtained a general warrant to enter and photograph a hotel room used by Blizzard, 2006 NBQB 155 (affirmed 2008 NBCA 37) and his friends, who were drug traffickers.  However, they forgot to draft a condition requiring them to give notice after the fact to the people whose privacy they violated.  Se 487.01(5.1) requires this.  The court found that the officer didn't act in bad faith, but was negligent.  The photos the officers took were excluded from trial.

Endangering the Suspect

As part of a larger conspiracy, Mr Knight 2008 NLCA 67 transported drugs in a spare tire.  Police sought and obtained a general warrant permitting them to seize the tire, but make it look like a common theft.  The police didn't tell the issuing judge was how much this would endanger Knight's life when the people he was working for accused him of stealing their product.  At trial, the judge excluded the evidence because of this non-disclosure.  The Court of Appeal found that enough information was in the warrant to allow the issuing judge to figure out the risks himself, and allowed the appeal.  All sides agreed that police have an obligation to protect their suspects from retaliation arising from covert police conduct.  When applying for a warrant for covert activity which might result in harm to your suspect, it appears that you ought to disclose to the issuing judge your risk assessment.

Anticipatory Warrant

This section may be used to search and seize stuff that you expect will be there, but isn’t there now.  R. v. Noseworthy  100 O.A.C. 76, 33 O.R. (3d) 641, 116 C.C.C. (3d) 376, 43 C.R.R. (2d) 313.

Brooks  [2003] O.J. 3757 Ont CA, a drug trafficker operated with minimal stock.  Usually her cupboard was bare.  Police expected that on some upcoming day in question she would have stock, but not at a time convenient to make an application for a search warrant.  Therefore, they obtained a general warrant for the purposes of an anticipatory search.  Their plan, as explained in the ITO was to arrest her, and if she was in possession of narcotics, to search her house. Held: Violation of s.8 because there was no evidence of haste.  Once they arrested her, they could have then obtained a search warrant.  However, they was admitted anyway because the police officers acted in good faith. The court generally approved of an “Anticipatory Warrant”, but applied the following requirements from an American case US v. Ricciardelli 998 F 3d 8 (1st Cir 1993)):

Pre-conditions must be

So that the judge knows exactly what needs to occur before the police can execute the powers granted.

So that the peace officers will know when the search is authorized.  This is not to be a delegation of power to decide to search.  It must be a triggering event.

The trigger must not be a delegation of power to the police to decide how big a violation of privacy may occur, but a determinable event, like a "resort to" clause in a wiretap.  Lucas, 2009 CanLII 43418 (ON S.C.).

Reasonable grounds to believe in a specific event suffices for the trigger for an anticipatory warrant.  A time-frame of 60 days, in that case was a reasonable time for the warrant to permit the police to wait for the trigger to fire.  Lucas, 2014 ONCA 561

Canada Post drew to the RCMP's attention two kilogram bricks of cocaine for delivery to a non-existent corporation.  Police substituted for the bricks an electronic device which triggered when the package opened, signalling its location.  They obtained a general warrant permitting them to "enter and secure any place should the [package] be observed entering such a location or be determined by other investigative means to be at such a location" when the trigger fired.  Surveillance failed to observe the delivery of the package to Mr Kavanagh, 2010 NLTD 169.  The devices which located the beacon did not pinpoint its location, but gave a vicinity, within several blocks.  When the trigger fired, police took down the right place.  But the court found that they did not have sufficiently precise information to say that they had "determined" the package was there.

Darby, 2012 ABCA 27 -  The court permitted a search triggered by accumulating evidence justifying a belief that drugs would be in a residence. No one item of information could be said to be the trigger. The trigger was when police formed reasonable grounds to believe that drugs would be in the residence.

Smart, 2013 ABQB 561 - The court rejected a general warrant to search a residence triggered by delivery of known package of drugs.  The court held that the general warrant could authorize an initial entry; thereafter, the officers would have to seek further judicial authorization for a regular search warrant.  I'm skeptical that this will survive long-term scrutiny.

Future Offences

You can not see the future.  How accurately must you predict the offence you believe the suspect will commit?  In Della Penna, 2012 BCCA 3 the court gave officers some leeway.  You must be able to show that the offences you want to investigate can be perceived as being "on the cards".  "it is unrealistic to expect great particularity of details at an early investigative stage".

General Warrant + Assistance Order

Like an address on the face of a warrant.  Either it’s right or it’s wrong.

In R. v. Telus Communications Company, 2013 SCC 16 police obtained a general warrant and assistance order which required Telus to produce every day from their stored database of text messages in and out of their system, all text messages sent and received by two subscribers for the two weeks after the order was granted.

Three judges of the SCC thought that this activity was "interception" of private communication, and therefore, Part VI applied.  The officers should have obtained a wiretap authorization.

Two judges approached this from a slightly different angle.  Whether or not these text messages were "intercepted", they could have been obtained using Part VI, and therefore s.487.01(1)(c) prohibited them from using a general warrant.

The last two judges figured that this activity wasn't "interception", nor was it similar.

Where a general warrant resembles another provision, the general warrant should require similar protections for privacy as the other provision.  (Telus per Moldaver J. at para 81)

What does this confusing disagreement between the judges mean for police?

  1. Don't use general warrants to get text messages from Telus' database every day.  (The other cell phone companies don't store text messages in their computers.)
  2. Before seeking a general warrant, look for other statutory authorities to get what you want.
  3. If you don't know which authority applies, you're more likely to succeed in court if you meet the prerequisites of the more difficult one.
  4. Expect further litigation wiretap, general warrants and intrusions into electronic communications.  Whatever you do now may be wrong by the time the your investigation reaches trial.

"Resort-To"

A general warrant can, in theory, authorize searches of locations which are unknown when the application is drafted.  In Re: Ingrouille, 2012 SKPC 107, the judge rejected such an application because the ITO inadequately circumscribed the locations to be searched: you must describe them very carefully so as to show why searching them "will" probably discover information concerning the offence.

Assistance Order

The National Post 2008 ONCA 139 hid a letter and the envelope that contained it in an undisclosed location.  Police sought and obtained a general warrant and an assistance order requiring them to bring the papers to their offices where the police could seize it.  The police were not interested in copies: they wanted to subject the original to DNA testing.  Essentially, this was a production order for a "thing" rather than a production order for a document.  The application occurred before production orders were available.  The court found that the assistance order was lawful.  (Note that the officers sought a general warrant rather than a search warrant because they knew that the document wasn't yet where they wanted to search for it.)

Constitutionality

General warrants survived general constitutional attack. Lucas, 2014 ONCA 561