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General Warrant
Basics
- GW applications are to be considered and granted pursuant to
s. 487.01
of the CC.
-
Special considerations, above and beyond the
required basic elements,
include:
- GW applications can only be considered and granted by judges -
s. 487.01(1);
- GWs can only be granted when the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant -
s. 487.01(1)(b);
- GWs can only be granted when there is no other provision in the Criminal Code or any other Act of Parliament that would provide
for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done -
s. 487.01(1)(c);
- these warrants cannot be used to permit any interference with the bodily integrity of any person -
s. 487.01(2).
Review
[B. (J.); {paras 3-4};
NLCA
and
McDowell;
ABQB]; and
- the standard is one of "reasonable probability."
""Fishing expeditions" based on reasonable suspicion are not permitted. It is critically important given the wide range of surreptitious
searches that may be authorized by this section {para 29}
[Guilbride, K.P.; 2003 BCPC 177;
BCPC]."
-
GWs are not mentioned in
s. 488
of the Criminal Code. Hence they are an exception that permit night searches, or covert entries, without specific permission to operate at night
[Lucas, S.; 2009 CanLII 43418; {paras 35-37};
OSCJ].
-
ITOs
for these applications are usually very long and detailed, as an example 378 pages in
[Lucas, S.; 2009 CanLII 43418; {para 38};
OSCJ]
or 143 pages in
[Ford, D.M.; {para 46};
BCCA].
-
When the GWs have specific wording that allows the act they can be used to give authorities permission to:
- trespass to obtain evidence
[Ford, D.M.; {para 46};
BCCA].
Also review:
[Brand, S.; {paras 7-9};
BCSC,
Lane, B.R.; {paras 13-14};
NSSC
and
Somerville, M.D.; {paras 18-19};
NBCA].
See
no trespassing.
- perform covert entries
[Ha, M.T.; {para 58};
OCA,
app dism'd;
SCC].
Also review
[Grywacheski, K.J.; {para 7(f)}:
MQB,
Lucas, S.; 2009 CanLII 43418; {para 44};
OSCJ
and
Pham, B.E.; {paras 22 and 64};
OSCJ].
-
perform anticipatory searches - those where applicants have produced enough investigatory evidence in the
ITOs
to show that there is a high probability that evidence of a crime will be found. The GW should have strong, clear pre-conditions that
describe when, where and upon what events that the search can take place.
"Suffice it to say that in order to avoid the risks associated with anticipatory warrants, I think there is much to be said for insisting on
pre-conditions that are explicit, clear and narrowly drawn. Furthermore, without finally deciding the matter, I am inclined to the view that
the pre-conditions in the instant warrant were acceptable {para 28}
[Brooks, T.L.;
OCA]."
Also review
[Noseworthy, J.; {para 15};
OCA].
Note, that the standard for allowing entry via a GW that allows an anticipatory search is when the police have gathered enough
evidence to later show that there was a "... credibly-based probability instead of mere suspicion ..." that the items they were looking
for were now present in the premises they wished to enter and search {para 50}
[Kavanagh, M.;
NLSC]."
- authorities can photocopy mailed envelopes that have been delivered by Canada Post under the terms of general warrants. Once the mail is
delivered such a provision does not offend the Canada Post Corporation Act
[Canada Post Corp.; {paras 29-33};
OSCJ].
In the obverse situation, authorities can also photocopy and photograph mail before it reaches Canada Post's hands, under the terms of a
general warrant. Here to review letters being written by a serving prisoner
[Ballantyne, L.F.; {paras 58-88};
BCSC].
Further, authorities can make arrangements to obtain "a general warrant authorizing them to make a “controlled delivery” of the packages
[containing illicit materials]
[Allen, D.;
NLPC]."
Review
searches of mail.
-
General warrants can be used to obtain copies of text messages from communication service providers
[Telus Communications Company; {paras 43-76};
OSCJ].
-
"The general warrant authorized the use of an intrusion alarm and tracking device, the controlled delivery, the entry and search of the offices
and the seizure of the delivery package as well as other related evidence {para 3}
[MacKay, D.;
OSCJ].
-
The common rules against the use of
overly broad wording
apply to general warrants too
[Ahmad, F.; {paras 35-37};
OSCJ].
-
The conditions imposed by the issuing judge should give consideration to the special rules governing
privileged materials.
In this case the
SCC
noted, with approval, that the issuing judge had taken into account the special rules in regard to searches of
press offices
[National Post; {para 87};
SCC].
-
GWs can be used to obtain materials in support of a Crown application to have a convict declared a dangerous offender
[Ongley, M.J.; [2003] O.J. No. 3934; {paras 5 and 6};
OSCJ]."
-
GWs can be the subject of
sealing orders
[Criminal Code s. 487.3, Application of General Warrant; {para 31};
SKPC
and
Re Applications by Canada Customs and Revenue Agency for Sealing Orders; {paras 1 and 3};
OCJ].
-
GWs can be used to "... re-seize [contraband] items previously seized from the respondent, upon their return to respondent's counsel at the offices of the RCMP in
Cornwall later the same day ... {para 3}." In this situation the items had been seized under a search warrant that had been quashed
[Noseworthy, J.; {para 2};
OCA].
However, that does not necessarily mean that authorities can use the same process for other reasons. Here because the police had let the
detention of items seized period lapse, without renewing the detention application before it expired
[Application for a General Warrant Pursuant to s. 487.01 Cr. C. (Re);
QCQ].
-
GWs cannot be used when an ordinary search warrant would produce the same result
[Re Applications by Canada Customs and Revenue Agency for Sealing Orders; {para 1};
OCJ].
END OF GENERAL WARRANTS SECTION
Page SR 45
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