Romaniuk's
Search Warrants Considered

General Matters

• One search warrant can issue for two separate addresses
  [Sleath v. Hulbert; [1896] 25 C.S.C.R. 620; SCC].
• Different varieties of intrusive warrants can be issued simultaneously to allow for the search of the same premise. "[The court's] attention has not been drawn to any sound legal basis why police authorities could not simultaneously obtain a warrant pursuant to both s. 487.01 and 462.32 to search a place {para 38}
  [Black, D.M. (2010 #1); NBCA," Black, D.M. (2010 #2); {paras 8-12}; NBCA, app dism'd, #1; SCC and app dism'd, #2; SCC].
  "The fact that the police could have used a different method to achieve the same result does not place their choice of an alternative route at odds with the best interests of the administration of justice {para 38}
  [Lucas, S.; 2009 CanLII 43418; OSCJ]."
  "A search warrant issued under a valid Criminal Code provision does not constitute a breach of a Charter right merely because an alternative mechanism exists {para 6}
  [Porisky, R.A.; BCSC]."
  Note: "In our view, it is clear that the Production Order did not have the same authorizing power as either a Search Warrant or a General Warrant {para 46}
  [Huynh, Y.T. ABCA]."
• "In the case at bar, there were, in effect, two separate authorizations granted within one formal order: one at the request of the Attorney General of British Columbia to assist in the investigation of firearms offences; the other at the request of the Solicitor General of Canada to assist in the investigation of drug-related offences. The terms of those two authorizations are identical in all respects, e.g., who could be intercepted and where those interceptions could be made. Accordingly, as long as there was a basis for granting one of those authorizations, interceptions made pursuant to the formal order were lawful {para 27}
  [Ahmed, S.; BCCA]."
• "In particular, there is nothing inherently misleading in using a single information when seeking a series of warrants that relate to the same investigation. Indeed, even if individual informations were used, it would be prudent for the police to describe the investigation in full in each information {para 4}
  [Todorov, R.; OCA]."
  Contra, "Applications had been made here for a variety of orders including a number-recorder warrant, production of telephone records order, as well as a sealing order, pursuant to ss. 492.2(1), 492.2(2), and 487.3 of the Criminal Code respectively, with the court in effect being invited to consider a "rolled-up" application for the various orders on the basis of a single document prepared and sworn by a peace officer." "Roll-up" applications are unacceptable. Each intrusive warrant requested has a discrete set of considerations, hence a separate application should be made for each type of warrant requested
  [Ontario (Attorney General) (Communication interception authorization) (Re); [1997] 36 W.C.B. (2d) 236; OCGD].
  Also review: Judge Shopping.
• The Criminal Code provisions allowing intrusive warrant applications to proceed on an ex-parte basis do not offend the Charter. Here a warrant to take D.N.A.
  [Rodgers, D.; {para 5}; SCC].
• The right to search a residence, includes an ability to dig into the soil on the related property
  [Le, Tam D.; {para 30}; MQB, app dism'd, 2011 MBCA 83; AR 09-30-07118; MBCA, app dism'd; SCC].
• Other means of investigation need not "be exhausted before a search warrant should be applied for {para 62}
  [Lyon, G.W.; BCSC]." Also review [Charania, A.; {para 18}; OSJC and Trecartin, D.J.; {para 25}; NBPC].
• A search warrant can issue for "persons unknown" to have committed the offence
  [Sanchez, S.; OCGD].
• The ITO shall set out any grounds for the belief that the items to be seized under the search warrant will afford evidence in respect of the offences with which the accused is to be charged
  [Kea, A.; {para 36}; OSJC and Cann, T.J.; [1997] 9 W.W.R. 139; ABPC].
• "Any warrant should state on its face the enabling power and authorization in sufficient terms to reasonably inform the subject of the nature and object of the search {para 47}
  [Gerrard, K.; OSCJ]."
• A search warrant may be issued without first laying a charge against the accused
  [Townsend (No. 4), sub nom Townsend v. Cox; [1907] 12 C.C.C. 509; JCPC].
• The police cannot accompany other officials on searches authorized by administrative warrants. Here the other officials claimed it was for safety reasons; where they were looking for evidence of theft of electricity in regard to marijuana grow operations. The Court held that the police were conducting searches that should have been authorized by Criminal Code search warrants
  [Arkinstall, J.C. (2008); {paras 170-173 and 182}; BCSC, app on other grounds; BCCA].
• A statute that requires a cabinet minister's authority to investigate or search does not offend the Charter by breaching judicial independence. The judicial officer can still refuse the application
  [143471 Canada inc.; {heading 4}; QCA].
• The form of the search warrant must comply with the statute it is purported to be issued under. Otherwise it is void and of no effect
  [Goguen, R.; NBCA].
• "A number of pre-trial remedies are available to a person who has been the subject of a search. [Then] section 231.3(7) provides for review and the Criminal Code makes provision for a speedy application for the return of seized goods. If the matter should proceed to trial, the accused may attack the search warrant in any way he considers appropriate, including the allegation that it infringes the provisions of s. 8 of the Charter. If the matter should not go to trial, a party may still seek civil damages for compensation {head note}
  [Kourtessis, C.; SCC]."
• The considerations in regard to issuing and challenging a production order are the same as those for search warrants
  [Dunphy, B.; {paras 38 and 39}; OSCJ; and Woodroffe, M.; {para 13}; OSCJ].
• "It is common ground that the interception of communications conducted in this case constituted a search and seizure within the meaning of s. 8 of the Charter {para 64}
  [Martin, G.W.; NBCA]," app dism'd; SCC
• Performing a Gun Shot Residue (GSR) test is a form of intrusive search. The police must obtain either the consent of the accused or a search warrant to perform one. "Here, of course, the procedural safeguards required the police either to obtain an informed consent to the test from J.W. or to obtain a search warrant authorizing the GSR test. Both of those safeguards were ignored {para 15}." "Simply put, the fact that J.W. had rights in respect to this test does not appear to have crossed the mind of any of the officers involved in this investigation {para 16}
  [C.D. and J.W.; OSCJ]."
• Warrants to take DNA are constitutionally acceptable
  [Brighteyes; {para 144}; ABQB].

End of General Matters Section

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