Search & Seizure Toolbox

1. an offence has been or will be committed
2. under Canadian or foreign law
3. foreign offence is being investigated by their local authority
4. computer data is in someone's possession or control
5. it will assist in the investigation of the offence

1. an offence has been or will be committed
2. under Canadian or foreign law
3. foreign offence is being investigated by their local authority
4. computer data is in someone's possession or control
5. it will assist in the investigation of the offence

1. an offence has been or will be committed
2. a person
3. possesses or controls
4. a document or data
5. which will afford evidence respecting the commission of the offence.

1. an offence has been or will be committed
2. a person
3. may possess a document or data on any of up to 10 specified dates in the 60 days after making the order
   
4. and if they do, it will afford evidence respecting the commission of the offence.

1. an offence has been or will be committed
2. identifying a device or person involved in the transmission of a communication will assist in the investigation of the offence
3. transmission data is in the possession or control of unknown persons.

1. offence has been or will be committed
2. a person has transmission data
3. that data will assist investigation of the offence

1. offence has been or will be committed
2. a person has tracking data
3. that data will assist investigation of the offence

1. offence has been or will be committed
2. a financial institution or person or entity
   
3. has an account
4. identifying the acccount or the holder of the account will assist investigation of the offence

529.1

JP or Judge

Feeney - Arrest a Person in a Dwelling House

1. person is or will be in the dwelling and
   
2. one of:
   
1. a warrant exists or
2. person has committed, is committing or is about to commit an indictable offence or
3. grounds exist to arrest or apprehend the person under a federal act.

Telewarrant 529.5

Exigent Circumstances for life or evidence s. 529.3

Backing order s.528

Dynamic ("no-knock") Entry requires judicial pre-authorization. 529.4

- 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 all in your information to obtain

- There is no statutory prohibition against a night arrest; but a wise officer explains why a night arrest is appropriate.

487

JP

Search warrant for things in buildings, receptacles and places

1. an offence has been committed
2. a building, receptacle or place contains
   
3. one or more of:
   
1. a thing which was the subject of the offence,
2. a thing that will "afford evidence" about the offence,
3. a thing that will reveal the whereabouts of the culprit
4. a thing that will be used for a hybrid or indictable violent offence,
5. offence-related property
   

Telewarrant  487.1

Exigent Circumstances 487.11

Night search  488

Warrant may be executed anywhere in Canada 487(2); but public officers and peace officers must have authority to act in that jurisdiction.

- 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

1. a computer system
2. in a place
3. has data which meets the requirements of s.487 warrant.

See 487 warrant

- You can use the computer system to search for and copy data
- You can compel technicians to help you use the equipment 487(2.2)

1. no other way by which the information can reasonably be obtained &
2. public interest in the investigation outweighs the journalist’s right to privacy

488.1

Judge

Search & seize things in lawyer's offices

- s.487 warrant

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

Legislation is currently unconstitutional - get legal advice

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

1. an offence has been or will be committed
2. information concerning the offence will be obtained through the use of a technique, procedure or device or act that affects someone's rights under s.8 of the Charter
3. the public interest in investigating this way outwighs the importance of the privacy that will be affected
   
4. no other authority exists to do what you want to do
5. the search will not interfere with bodily integrity of any person.

Video:

1. meet the requirements of wiretap 487.05(5.1)
   
2. minimize intrusions into privacy 487.01(5)
   

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

Extensions up to 3 years

Warrant may be executed anywhere in Canada  s.487.01(6)

Telewarrant available except for video s.487.1

Covert Entry:

• must give notice to affected parties after covert entry.

See this page for commentary

492.1

JP or Judge

Tracking Warrant for cell phones or other things that are worn or carried by individuals

1. offence has been or will be committed
2. tracking and locating a thing
3. that is usually worn or carried by the individual
4. will assist in the investigation of the offence
   

• The warrant authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the tracking device, including covertly.

• 60 days or less - renewable
  
• 1 year for criminal organization and terrorism investigations.

1. offence has been or will be committed
2. locating or tracking transactions or a thing
3. will assist in the investigation of the offence
   

492.2(1)

JP

Transmission data recorder

- install, use and remove, including covertly

Reasonable grounds to suspect:

1. offence has been or will be committed
2. transmission data will assist in the investigation of the offence

Duration:

• 60 days or less - renewable
  
• 1 year for criminal organization and terrorism investigations.

Assistance order s.487.02

Warrant may be executed anywhere in Canada

487.092

JP

Impression warrant - prints and impressions from persons

Reasonable grounds to believe:

1. an offence has been committed
2. 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
3. the public interest in investigating this way ooutweighs the importance of the privacy that will be affected

Warrant may be executed anywhere in Canada. s.487.092(3)

Telewarrant available s.487.1

Assistance order s.487.02

- 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) warrant

Reasonable grounds to believe:

1. a designated offence has been committed
2. a bodily substance was found or obtained:
1. at the place where the offence occurred
2. on or in the body of the victim
3. on something the victim wore or carried at the time of the offence
4. on or in the body of any person or thing associated to the place
3. a person is suspected of being a party to the offence
4. forensic DNA analysis will provide evidence about whether the bodily substance came from the suspect.

1. the seriousness of the offence and
   
2. whether a police officer or trained person can take the bodily substances from the suspect in accordance with s.487.06

ITO must be in Form 5.01

Warrant must be in Form 5.02

Special procedures required for taking DNA 487.06

Telewarrant available s.487.1

Assistance order s.487.02

Warrant may be executed anywhere in Canada. s.487.05(4)

320.29

JP

Blood warrant for impaired driver, pilot, engineer or captain

1. a person
2. operated a conveyance
3. within the preceding 8 hours
4. that was involved in an accident
5. that caused:
1. bodily harm to the person or
2. death or bodily harm to other person(s)
   

6. drug or alcohol in body of driver/operator

7. the person is unable to consent to the taking of blood samples; and
   
8. taking blood samples will not endanger person's life.

Telewarrant available s.487.1

Warrant executable only within the jurisdiction that granted it.

Execute this warrant only if the doctor still thinks that the suspect can't consent and taking the samples won't hurt him/her. s.320.29(4)

Limit on use of blood sample to drug/alcohol analysis: 320.36(1)

Samples may be tested for both alcohol and drugs, even if the available grounds identified only one as a cause. s.320.3.

Limit on disclosure of any results to impairment prosecutions. 320.36(2)

1. Either
1. a weapon, imitation firearm, prohibited device, ammunition, explosive device
2. was used in the commission of an offence
2. Or
   
1. an offence specific to those kinds of weapons and devices
2. is being committed or was committed
3. Evidence of the offence will be found
4. In any place other than a dwelling-house
5. Exigent circumstances prevent applying for a warrant
   

117.04

JP

Guns, bombs ammunition, prohibited devices

Reasonable grounds to believe:

1. A person
2. Possesses
3. a weapon, prohibited device, ammunition explosive substance
4. In a building, receptacle or place
5. The person's continuing possession is not desireable in the interests of safety of the person or others

Exigent circumstances permit warrantless search.

Warrant executable only in the jurisdiction that issued it.

Telewarrant available s.487.1

Warrant should authorize the seizure of any authorization, licence or registration certificate held or possessed by the person.

- '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.

184.2

Prov Ct or Sup Ct Judge

1. an offence
   
2. that is particularized in the application
   
3. has been or will be committed
4. a party consented to the interception of his/her private communications
   
5. information concerning the offence will be obtained by interception of communications
   

1. particularize the offence
2. name the person who consents to interceptions
3. specify the period of the interception
4. particularize previous authorizations for interceptions
   

Duration:

• 60 days or less - renewable
  
• 1 year for criminal organization and terrorism investigations. 186.1
  

Exigent Circumstances 184.4

184.1 risk of bodily harm - one-party consent

Authorization may be executed anywhere in Canada 188.1

Telewarrant 184.3

Assistance order 487.02

- the judge may also grant production orders, tracking orders, phone traces at the same time. 184.2(5)

185

Sup Ct Judge

Reasonable grounds to believe:

1. investigative necessity or urgency requires this kind of intrusion into privacy
2. other investigative procedures were tried and failed, or other investigative procedures won't work
   
3. offence identified in s.183

1. particularize the offence and the reasons why the judge should grant the application
2. identify the type of interception proposed
3. identify the names and places of interception
   
4. specify the period of the interception
5. (except for criminal organization offences) list the investigative techniques that have been tried, but failed; and explain why other techniques won't work
   
6. particularize previous authorizations for interceptions

Duration: 60 days (1 year for terrorism and crim org offences s.186.1)

No interception of lawyers except when the lawyer, partners or staff are a party to the offence.

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

Applications to intercept communications of criminal organizations and terrorists do not need to establish investigative necessity or urgency.  s.185(1.1), s.186(1.1)

Telewarrant s.184.3(1)

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)

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.

199

JP

Gambling dens
Bawdy houses

- an offence under

- 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

Warrant may be executed anywhere in Canada (starting September 19, 2019)

- 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

25.1-25.4

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

Warrant may be executed anywhere in Canada,

Telewarrant - s.487.1(1)

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