Romaniuk's
Search Warrants Considered

Search Warrants Cannot Issue For

• A search warrant can be issued under s. 487(1) CC "to search a building, receptacle or place;" but not people:
  
  
  1. A person (here to retrieve bullets shot into the accused)
     [Laporte; (1972) 8 C.C.C. (2d) 343; QQB].
  2. To take fingerprints
     [Bourque, Y.; QCA].
  3. Items on a person (here to remove a bandage)
     [Miller, P.; (1987) 23 O.A.C. 32, 62 O.R. (2d) 97, 38 C.C.C. (3d) 252, 3 W.C.B. (2d) 302; OCA].
     However, they can issue for bandages that have been taken off and discarded
     [Kaba, A.M.; QCA; app dism'd; SCC].
  4. To seize a hospital gown and socks off of a suspect who was wearing them
     [Payne, I.V.; {paras 31 and 32} NLTD].
     But the seizure of clothing worn by an accused rapist at a hospital, was deemed incidental to arrest, however the evidence obtained by combing his pubic hair was not
     [Custer, D.K.; {para 17} MQB].
     Also review [Babcock; {para 21}; ABQB].
  5. To search any persons who are "found-ins" when a Criminal Code search warrant is executed
     [Mutch, S.G.; (1986), 26 CCC (3d) 477, 22 CRR 310; {para 4}; SKQB and Paint, E.; (1917), 28 C.C.C. 171, 36 D.L.R. 717, 51 N.S.R. 114; {para 13}; NSCA].
     Contra, in this case a search incidental to lawful arrest for legitimate officer safety reasons was acceptable. There were more potential accused persons present than there were police officers. The safety concern was obvious [O'Donnell; R.; [1991]; NWTR 158; {para 24}; NWTC].
     Review motor vehicles - searches incidental to lawful arrest.
     Note, see the exception directly below.
     
     
  NOTE: applications made under CDSA warrants
  
  
  1. allow searchers to search "any place" - s. 11(1); and
  2. "persons" who are found in the premises while the search is being conducted - s. 11(5).
     
     
  Further if authorities want to search a person they can always apply for a General Warrant pursuant to s. 487.01 of the CC
  [Shafapay, H.; ABQB].
  But general warrants cannot be used to permit any interference with the bodily integrity of any person - s. 487.01(2). Review general warrants.
  
  
• Where authorities obtained a search warrant to seize clothing being worn by the accused. The search warrant should not have issued, but the evidence was admitted in that the investigators had obtained a search warrant in good faith that they could
  [Kitaitchik, A.; OCA].
• Generally, a search warrant can be issued under s. 487(1) CC "to search a building, receptacle or place;" but not fixtures
  [Munn (No. 1); (1938) 71 C.C.C. 139; PEISC].
  Unless they are specifically mentioned in the application and on the face of the search warrant
  [Taylor, T.J. (No. 6); BCSC].
• Search warrants cannot be issued for hospital records for the "... specific purpose of determining whether or not [the accused] was mentally fit to stand trial, to gather evidence of admissions allegedly made by the accused during the remand period {para 20}
  [Waterford Hospital; (1983) 35 C.R. (3d) 348, 43 Nfld. & P.E.I.R. 132, 127 A.P.R. 132, 6 C.C.C. (3d) 481, 150 D.L.R. (3d) 755; NLCA]."
  Review searches of hospital records too.
• A search warrant must issue for a tangible object. Here the police wanted to seize the balance of funds in a bank account. Funds in a bank account are intangibles, hence the search warrant should not have issued
  [Bank du Royal Du Canada (1985) 18 C.C.C. (3d) 44; QCA, leave to appeal denied loc. cit. SCC].
  Note, applicants can always apply for a Restraint Order pursuant to s. 462.33 CC.
  See the special considerations in regard to searches of banks too.
• Search warrants cannot issue for events that are anticipated to occur in the future
  [Branton, D.; {p. 156}; OCA, Cameron; BCCA, and Fleet Areospace Corp. 19 CCC (3d) 385; OHCJ].
  However, General Warrants can, that is why they are provided for in s. 487.01 of the CC
  [Noseworthy, J.; {para 15}; OCA].
  Review general warrants.
• Search warrants cannot issue for materials that are subject to a sealing order
  [Ciarniello, R.; OSCJ].
• Search warrants cannot issue to search warehouses or transportation used to store or ship licensed materials on behalf of licensed clients (i.e. alcohol), on the basis that the warehousemen or shippers do not hold licenses to possess those materials themselves
  [Gold Seal Ltd; [1920] 33 C.C.C. 234; ABCA, Publicover, H.; [1915] 49 N.S.R. 85, 24 C.C.C. 1, 21 D.L.R. 203; NSSC, Rhodes; [1924] 42 C.C.C. 61; MCC, and United Shippers Limited; [1923] 40 C.C.C. 18; ABDC].
• Search warrants cannot issue to search for materials that might disprove a defence to outstanding charges (here due diligence). "In my opinion, if intrusions of this nature into the rights of privacy and property are to be authorized in respect of the potential defence of due diligence, the legislation should clearly state this as a ground for obtaining a search warrant {para 46}
  [Re: Domtar Inc.; BCSC]."
• Search warrants granted for the purpose of ordering "...a person to appear to answer questions and to produce documents..." cannot issue under provincial statues, absent a specific clause allowing them to do so {Para 39}
  [Branch, M.; OSCJDC].

Production Orders Cannot Issue For

• Production Orders for corporate records must name the corporation, and not employees, to produce records. "A company is a person within the meaning of the Code. A company is capable of possessing documents {para 20}." "Lastly, when a document is in the possession of a company or owned by a company, it would be wrong for the police to apply for, and those who grant the production orders, to expect an employee to take the data and documents that they are not authorized to do by their employer {para 26}." Here a police agency was seeking telephone records from a service provider
  [Sullivan, A.; BCSC].

Not Allowed

• Judges and Justices of the Peace cannot create intrusive warrants without statutory authority. Here by ordering a convicted person to "... submit to urinalysis, blood tests or breathalyzer tests upon the demand of a peace officer or probation officer [Shoker, H.S.; SCC]."
• The broad wording in s. 487.012(4) of the CC permitting a judge to add terms and conditions in regard to production orders, does not allow for the inclusion of a condition of the production order directing payment of reasonable costs of compliance by the corporate entity subject to the order
  [Tele-Mobile Co.; SCC].

End of Intrustive Warrants Cannot Issue For Section

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