Search & Seizure Toolbox

Henry Waldock
Last Updated: 2015.04.17

Warrants

Section
Court

Power

Prerequisites

Special cases

Notes

529.1

JP or Judge

Arrest in Dwelling House

-  person is or will be in the dwelling

- a warrant exists or he has committed, is committing or is about to commit an indictable offence.

Telewarrant 529.5

Exigent Circumstances for life or evidence s. 529.3

Backing order s.528

 

- When you get there, if you no longer believe he's there, don't go in

- If there is more than one dwelling where you believe he will be, specify them in your information to obtain

- You may obtain authority to omit announcing yourself if you explain why (529.4)

- If you plan to arrest at night, explain why in information to seek

487

JP

Search & seize things in buildings, receptacles and places

- offence has been committed

- thing is in a 'building, receptacle or place'

- thing is the subject of a crime, or it will reveal evidence about an offence or the identity of an offender, or it will be used to hurt someone, or is used  in the commission of an offence

Telewarrant  487.1

Exigent Circumstances 487.11

Night search  488

- Can get a warrant to search more than one dwelling.

- Need a time limit for the search

- Special conditions needed for public media: 2003 BCSC 1816

- Can?t search at night without specific permission

487(2.1)

JP

Search computers & take data

- a computer system will be in a place
- that computer has data available for search which will afford evidence.

See 487 warrant

- You can compel technicians to help you use the equipment 487(2.2)

488.1

Judge

Search & seize things in lawyer's offices

- s.487 warrant

- seeLavalee Rackel & Heintz 2002 SCC 61 and Maranda v. Richer 2003 SCC 67

Legislation is currently unconstitutional ? expect a rewrite

Judge issuing this warrant must impose a long series of restrictive conditions on the execution of this kind of warrant.  (See cases)

Get advice from Crown immediately.

487.01

Prov Ct or Supreme Ct Judge

'General Warrant'

Permission to do what other warrants won't permit

- an offence has been or will be committed

- information concerning the offence will be obtained through the use of a technique, procedure or device or act,
- no other authority exists to do what you want to do
- no interference with the bodily integrity of any person

Court may impose limits, particularly to protect privacy s.487.01(3) & (4)

 

Extensions up to 3 years

- covert measures permitted.

- Part VI applies to interceptions of private communications

- must give notice after execution 487.01(5.1)

492.1

JP or Judge

Tracking Device - objects and vehicles OR apparel - install, use and remove, including covertly

Reasonable grounds to suspect (for vehicles and things) or believe (apparel and accessories like phones)

- offence has been or will be committed
- tracking the movement of a thing or person will assist in the investigation of the offence
- named peace officer to install, maintain and remove device in or on anything ?worn? by a person
- monitor location

 

- 60 day maximum term of warrant (or a year for organized criminals and terrorists)

- Exigent circumstances permit installation without warrant (487.11)

- talk to Special I & Special O about installation and tracking.

- can get subsequent authority to remove the device after expiry of the original warrant

492.2(1)

JP

Transmission data recorder

- install, use and remove, including covertly

- reasonable grounds to suspect?
- offence has been or will be committed
-transmission data would assist in the investigation of the offence

- renewable 60-day limit s.492.2(4) (or a year for organized criminals and terrorists)

- Assistance order s.487.02

- backing order s.487.03

A B.C. court found  that the predecessor to this legislation required "belief" instead of mere "suspicion".  Nguyen 2004 BCSC 76.

This case may not be followed, because in Quebec, Ontario and New Brunswick, suspicion suffices. Cody 2007 QCCA 1276; Mahmood, 2008 CanLII 51774 (ON S.C.); Croft, 2013 ABQB 644, and Parliament has now enacted new legislation using the same standard.

487.092

JP

Prints and Impressions from Persons

- an offence has been committed
- a handprint, fingerprint, footprint, foot impression, teeth impression or any other print or impression of the body or part of the body will provide information concerning the offence

Telewarrants available where JP hard to reach

- restrict the methods used to get the impressions, so as to minimize the intrusion into the subject?s privacy.

487.05

Prov. Ct. Judge

DNA (bodily substance)
- use Form 5.01
- a designated offence has been committed (see definition)
- a bodily substance was found at the place where it occurred, or in or on a person or thing associated with the commission of the offence
- a person was a party to the offence
- DNA from that person will provide evidence
- a peace officer is trained to take DNA or another person can help

Telewarrant 487.05(3)

- special procedures required for taking DNA 487.06
- special reporting required 487.057
- limited to forensic use of DNA samples 487.08
- DNA samples to be destroyed 487.09
- Additional samples may be obtained if DNA analysis fails the first time around 487.091


256(1)

JP

Blood from a drunk driver, pilot, engineer or captain

- a person drove a car, boat, plane or train
- within the preceding 4 hours
- while impaired by alcohol or a drug
- causing an accident which inflicted bodily harm to himself or others (or death to others)

 

Telewarrant built into section.

 

117.02 Guns, bombs ammunition, prohibited devices not in a dwelling-house
- an offence involving the use of such a weapon has been or will be committed
- evidence of the offence will likely be found on a person or in the place
Exigent circumstances only.  If there's time for a warrant, go with s.487.

117.04

JP

Guns, bombs ammunition, prohibited devices

 

 

- no offence required
- not desirable in the interests of the safety of suspect or others for suspect (or any other person from whom suspect can get these things) to possess any weapon, prohibited device, ammo, explosives
- person possesses such a weapon

Exigent circumstances permit warrantless search

- 'Possible danger' triggers exigent circumstances.  This appears to be a low threshold.
- Prepare a report to a justice ?forthwith?
- Automatic firearms licence revocation if owner doesn?t give them to you.

164

Sup Ct Judge

Obscenity, voyeuristic recordings, intimate images, prostitution marketing, child pornography

Obscenity, voyeuristic recordings, intimate images that are "kept for sale or distribution"; or advertisements of sexual services or child pornography kept for any purpose

Within 7 days, the judge summons the owner to explain why the material should not be destroyed.

The judge orders destruction or return of the material

No prosecution for offences relating to this material, except with the Attorney-General's consent.

164.1

Sup Ct Judge

Voyeuristic recordings, child porn, intimate images, and prostitution marketing

Stored on a computer within the jurisdiction and ?made available?

Within a reasonable time, the judge orders that someone notify the person who posted the material of an upcoming hearing.

The court may order: the material removed from the computer, a copy given to the court, and the owner of the computer to identify the person who posted it to attend a hearing.

The court may order suppression, production of the data to court, notice and destruction of the data.

320

JP

Hate Propaganda

- these things are kept for sale in premises

 

After seizure, a judge summons the occupier of the premises to court to explain why the stuff should not be destroyed.

320.1
Hate Propaganda on a computer
- stored on a computer and
- made available to the public
Order person who operates the computer to:
- give a copy to the court
- clear it from the computer system
- identify the person who put it there
Notice to be posted on the computer to the person who put it there to come to court and explain why the material should not be destroyed

199

JP

Gambling dens
Bawdy houses

- an offence under

s.201 (common gaming house)
s.202 (bookmaking place)
s.203 (taking bets)
s.206 (property lotteries)
s.210 (bawdy houses)
- in the jurisdiction

- search by day or night
- arrest anyone found there
- can't seize telecommunication equipment unless it is designed or adapted to record the communication.

- may enter at any time of day or night

- may arrest all persons found in the place.

CDSA s.11

Drugs or their precursors

- controlled substance or precursor, or its container, or offence related property

- in a place

- telewarrant

- may search at any time

- may search any found-in for the things sought

- may seize other drugs, containers, offence related property or things which will afford evidence

184.2

Prov Ct or Sup Ct Judge

 

Interception of Private Communications by Consent

- an offence has been or will be committed

- a party consented

- evidence will be obtained by interception

- Exigent Circumstances 184.4 (In B.C. some additional requirements were read into the legislation: Tse et al., 2008 BCSC 211.

184.1 risk of bodily harm - one-party consent

- telewarrant 184.3

- time frame not more than 60 days

- identify parties, places, manner of interception

- terms and conditions

- telewarrant authorization valid for only 36 hours

- the judge may also grant production orders, tracking orders, phone traces at the same time.

185

Sup Ct Judge

Interception of Private Communications

Application by AG's agent

- investigative necessity or urgency
- no lawyers except parties to offences
- an offence listed in s.183
- names addresses and occupations of all knowns
- places of interceptions
- why interception may assist in the investigation

Exigent Circumstances 184.4 - necessary to prevent serious bodily harm by the person speaking.

Applicationss to wiretap criminal organizations and terrorists do not need to establish investigative necessity or urgency.  s.185(1.1), s.186(1.1)

- 60 days, renewable

- 1 year, renewable when investigating terrorists and criminal organizations. s.186.1

25.1-25.4

Extremely senior officials

Permission to commit offences

- peace officer may commit a crime
- while investigating an offence under an Act of Parliament
- the officer?s crime is less serious than the one being investigated
- no other reasonable way to investigate

Exigent circumstances

No death, bodily harm, interference with justice, nor sexual violations

Special training & authorization required before you can even think of using this kind of authority.

462.32

Judge

Seizing proceeds of crime

- property

- which is proceeds of crime

- is in a building, receptacle or place

- in any Province of Canada

- from an indictable offence* in the Judge's province

Must disclose prior applications

 

Backing order available

Attorney General makes the application, NOT A PEACE OFFICER

S.488 - need specific authority to search at night

* Some indictable offences are excluded by regulations: eg Income Tax Act, Copyright Act

462.33

Freezing proceeds of crime

- property

- which is proceeds of crime

- in any Province of Canada

- the crime was an indictable offence* committed in the Judge?s province

Must disclose prior applications

 

Backing order available

Attorney General makes the application, NOT A PEACE OFFICER

-* Some indictable offences are excluded by regulations: eg Income Tax Act, Copyright Act

Production Orders

Section
Court

Power

Prerequisites

Special cases

Notes

487.012
Police officer
Preservation demand for computer data Reasonable grounds to suspect
- an offence has been or will be committed
- under Canadian or foreign law
- foreign offence is being investigated by their local authority
- computer data is in someone's possession or control
- it will assist in the investigation of the offence
21 days for offences in Canada;
90 days for foreign offences.
Police officer can release the possessor from the demand
Form 5.001
Only one preservation demand permissible.

Judge or justice may order recipient of production order to keep the existence of the production / preservation order secret. s.487.0191 - Forms 5.0095.0091
487.013
JP or Sup Ct Judge
Preservation order for computer data Reasonable grounds to suspect
- an offence has been or will be committed
- under Canadian or foreign law
- foreign offence is being investigated by their local authority
- computer data is in someone's possession or control
- it will assist in the investigation of the offence
Preservation lasts 90 days
Such an order can not be made against a person under investigation.
Forms 5.002 & 5.003
Conditions to protect privacy and privilege. s.487.019(1)
Police may apply to vary or revoke the order. s.487.019(3) Form 5.0081
Judge or justice may order recipient of production order to keep the existence of the production / preservation order secret. s.487.0191 Forms 5.0095.0091
487.014 General production order for a copy of a document or for computer data Reasonable grounds to believe
- an offence has been or will be committed
- the document or data is in the person?s possession or control
- it will afford evidence respecting the commission of the offence.

Such an order can not be made against a person under investigation.
Forms 5.004 & 5.005
Conditions to protect privacy and privilege. s.487.019(1)
Police may apply to vary or revoke the order. s.487.019(3) Form 5.0081
Recipient may apply to revoke or vary order. s.487.0193
Judge or justice may order recipient of production order to keep the existence of the production / preservation order secret. s.487.0191 Forms 5.0095.0091
487.015 Production order to trace a communication to its origin Reasonable grounds to suspect
- an offence has been or will be committed
- identifying a device or person involved in the transmission of a communication will assist in the investigation of the offence
- transmission data is in the possession or control of unknown persons.

Such an order can not be made against a person under investigation.
Recipient of this order must produce "as soon as feasible" s.487.0192(2)
Forms 5.004 & 5.006
Conditions to protect privacy and privilege. s.487.019(1)
Police may apply to vary or revoke the order. s.487.019(3) Form 5.0081
Judge or justice may order recipient of production order to keep the existence of the production / preservation order secret. s.487.0191 Forms 5.0095.0091
Recipient may apply to revoke or vary order. s.487.0193
487.016 Production order to known persons for transmission data Reasonable grounds to suspect
- offence has been or will be committed
- a person has transmission data
- that data will assist investigation of the offence

Such an order can not be made against a person under investigation.
Forms 5.004 & 5.007
Conditions to protect privacy and privilege. s.487.019(1)
Police may apply to vary or revoke the order. s.487.019(3)
Recipient may apply to revoke or vary order. s.487.0193
Judge or justice may order recipient of production order to keep the existence of the production / preservation order secret. s.487.0191 Forms 5.0095.0091
487.017 Production order for tracking data Reasonable grounds to suspect
- offence has been or will be committed
- a person has tracking data
- that data will assist investigation of the offence
Such an order can not be made against a person under investigation. Forms 5.004 & 5.007
Conditions to protect privacy and privilege. s.487.019(1)
Police may apply to vary or revoke the order. s.487.019(3) Form 5.0081
Judge or justice may order recipient of production order to keep the existence of the production / preservation order secret. s.487.0191 Forms 5.0095.0091
Recipient may apply to revoke or vary order. s.487.0193
487.018 Production order to identify  accounts in a "financial institution" or "person or entity", or the holders of the accounts Reasonable grounds to suspect
- offence has been or will be committed
- the financial institution or entity or person has an account
- the information will assist investigation of the offence
Such an order can not be made against the person or agency under investigation. Forms 5.004 & 5.008
Conditions to protect privacy and privilege. s.487.019(1)
Police may apply to vary or revoke the order. s.487.019(3) Form 5.0081
Recipient may apply to revoke or vary order. s.487.0193
Judge or justice may order recipient of production order to keep the existence of the production / preservation order secret. s.487.0191 Forms 5.0095.0091

Collateral Orders

s.487.3 Sealing Order

An order to prohibit access to any information relating to the warrant, production order or authorization is available when release of the ITO or warrant would:

  1. compromise the identity of a confidential informant,
  2. compromise the nature and extent of an ongoing investigation,
  3. endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used,
  4. prejudice the interests of an innocent person; or
  5. the information might be used for an improper purpose, or
  6. for any other sufficient reason.

It is not enough merely to assert that you need such an order. The ITO or application must provide "particularlized grounds" why such an order is required. Toronto Star v. Ontario 2005 SCC 41.

s.487.02 Assistance Order

An order to compel people to assist peace officers in the execution of a warrant or authorization.

s.487.03 Backing Order

The power to execute an order from another province.

Reporting to a Justice

The results of a production order need not be reported to a justice.  487.0192(4)

After execution of a warrant, you must bring the person (s.503) or the thing or report of it (s.489.1) to a justice as soon as practicable.  People must be released, or brought before a justice no later than 24 hours after arrest.

Telewarrants differ: even if you don't execute the warrant, or find nothing, you must report to a justice "as soon as practicable" and not more than 7 days after execution. s.487.1(9).

Links


The Protecting Canadians from Online Crime Act came into force on March 9, 2015.  It changed production orders and tracking warrants.

A judge who authorizes wiretap may also grant search warrants, general warrants, production orders, tracking orders and phone number tracing. s.184.2(5) and 186(8) and 188(6)