Henry Waldock
Last updated: 2023.09.18
A judge may issue a general warrant to authorize you to do something that would otherwise engage s.8 of the Charter.
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. This limitation differs from the "investigative necessity" limitation in wiretap. The existence of other ways to investigate the offence does not preclude you from obtaining a general warrant. But you can't get a general warrant if some other kind of warrant or authorization would permit the kind of search you want to do, Brown, 2021 ONCA 540
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Section |
487.01 of the Criminal Code |
|
Court |
A Judge of either the Supreme Court or Provincial Court |
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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 |
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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 |
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Physical limits |
(2) No interference with bodily integrity |
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Generic limits |
(3) Warrant shall contain terms an conditions to ensure the search or seizure is reasonable |
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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. |
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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 |
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Telewarrant |
(7) Telewarrant is available because this section imports s.487.1 |
This phrase means that a public interest in obtaining the warrant
must outweigh the defendant's right to privacy. Ha,
2009 ONCA 340 at para 26. Don't ask for a general warrant for the
purposes of busting someone for shoplifting a candy bar. Greater
intrusions into privacy can only be justified by more serious
offences, and a clear need to obtain evidence about them by means
of the proposed investigative technique.
For example, was a "sneek-and-peek" warrant in the best interests
of justice for the apartment where Mr Nguyen,
2023 ONCA 367 stashed his drugs? Yes. It would advance the
investigation far better than a regular warrant because the
technique would permit identification of more people in his drug
network. And the impact on privacy was modest: nobody lived at the
apartment, therefore one would expect the search would not intrude
on his - or anyone else's - privacy in any irrelevant way.
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.
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.
You can't use a general warrant to discover the extra grounds you need to get a search warrant. You need R&P grounds to get a general warrant. Christiansen, 2017 ONCA 941
When you believe that someone stashes drugs in a particular apartment building, and you want to know which apartment, you can get authority to watch the target in the building. But remember to add in the warrant a requirement to give notice to the suspect after the operation completes. Pipping, 2020 BCCA 104
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.
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.
An interested police officer asked me to write about pole-cams.
It's an interesting subject.
Video cameras can make surveillance easier.
Some investigators need to watch places to see who comes and
goes. The people who frequent such places tend to worry about
police surveillance. They notice marked police cars. They notice
occupied vehicles parked nearby. But they don't always notice a
camera mounted on a utility pole, or some other unremarkable
edifice nearby.
Pole cams keep surveillance personnel safe by allowing them to
watch dangerous people without being seen. When the device records
only when it detects motion, it can save many hours of boring
police work.
Unsurprisingly, defence counsel complained that the police
violated the defendants' privacy when they set up pole-cams.
Judges reach differing conclusions about whether the devices
violated the targets' reasonable expectations of privacy (REoPs).
If your installation violates an REoP, then generally, you need
judicial pre-authorization before you can set it up. You
need a General Warrant.
If you don't violate any REoPs, then you don't need a General
Warrant. The burden of the extra paperwork is significant.
That's why, when this police officer asked, I read some cases.
Here's what I found this afternoon:
| Case |
Install |
REoP |
| R vs Wong and R vs Flintroy. |
||
| R. v. Aubrey, 2022 ONSC 635 | View:Front of house and part of driveway Privacy: Parts of the camera's view were not visible to the public. Duration:4 months Permanence: Most video live-viewed. |
Yes |
| R.
v. Wong, 2017 BCSC 306 |
View: Back yard, back of house, garage and a
tent garage, from 20' in the air. Privacy: The camera saw no more than what would be seen by a person standing in the back alley. Duration 20 days Permanence: All video recorded. No audio. |
Yes |
| R.
v. Bryntwick, 2002 CanLII 10941 (ON SC) see also R. c. Elzein, 1993 CanLII 3860 (Que C.A.) |
Video-recording by police officers,
not using a pole cam View: front of residence Privacy: The camera saw only what the public would see Duration: 2 days Permanence: Video-recording. |
No |
| R. v. Yu, 2019
ONCA 942 R. v. White, 2015 ONCA 508 |
View: Common areas inside an apartment
building |
Yes |
| R v. Hoang, 2021 ONSC 6054 | View: Only what the general public would see
of the outside of the building. Duration: 8 days Permanence: Video recorded, but no audio. |
No |
| R.
v. Moore, 2023 ONCJ 98 |
View: driveway and part of the front of the
house Privacy: roughly the same as what a nearby neighbour would see out their window. Duration: 3 months Permanence: Recorded, but police negligently lost the recordings. |
No |
| R.
v. Edwardsen, 2019 BCCA 259 |
View: Two residences. Privacy: What the public would see. Duration: 10 months Permanence: No recording; live monitoring only. |
No |
| R.
v. Scott, 1996 CanLII 7082 (SK KB) |
View: Residence as seen from a neighbor's
property. Privacy: No more than what the public could see. Duration: 2 months Permanence: motion-activated recordings. |
No. |
Beware of relying too heavily on the Edwardsen case. The court did not tackle the lawfulness of pole-cams head on.
I encountered a damned-if-you-do-damned-if-you-don't pair of
cases.
In Wong, Kent J. found the permanence of the recording
of the activities to be a factor that led to the conclusion that
the pole-cam violated the homeowner's reasonable expectation of
privacy. Also, the court seemed to view the back alley as a more
private vantage point than the front of the house.
This case suggests that an officer could reduce the impact of a
pole-cam on a target's REoP if the officer chose to watch the
video live, rather than recording the events.
In Moore, the police lost the recordings between the time
they were made and the trial. The court found that this failure
to preserve evidence breached the defendant's right to full
answer and defence, and excluded crucial evidence.
Therefore, the officer who chooses to use a pole-cam with
live-monitoring rather than recording may be accused of
deliberately preventing the defence from confirming what the
officer claims to have seen in the camera. Damned if you record.
Damned if you don't.
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; Christiansen, 2017 ONCA 941
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?).
A general warrant authorizes police to do things. It is not an authority for a judge to order third parties to do things. In the matter of an application for a General Warrant pursuant to section 487.01 of the Criminal Code of Canada, R.S.C. 1985., 2018 CanLII 39387 (NL PC).
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.
Just watching your suspect in the common areas of an apartment building may trigger this section. Pipping, 2020 BCCA 104
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.
This warrant may be used to lie in wait to catch the guy who put the drugs in the place. In Jodoin, 2018 ONCA 638, the police knew that there were drugs in a locked building. They could have applied for a warrant and seized the drugs. But they had reason to suspect Mr Jodoin, and they wanted to catch him red-handed. They applied instead for a general warrant which would allow them to watch until Mr Jodoin appeared. Then they could arrest and search. The court held this to be a proper use of a General Warrant.
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)):
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.
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.
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?
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.