Romaniuk's
Search Warrants Considered

General

• The applicant for a telewarrant shall be a peace officer. Other government authorities who may have investigative powers do not have the legal ability to do so.
  "Section 487.1(1) of the Code is clear in requiring that only peace officers have the ability to obtain a search warrant by telephone. A public officer is entitled to obtain a search warrant under s. 481(1) {para 35}." "Based upon the provisions of s. 487.1(1) and taking a narrow view of state power, the telewarrants ought not to have been issued by the JJP, as Mr. Smallacombe is not a peace officer and therefore did not have the authority to seek a search warrant by telephone in accordance with s. 487.1(1) of the Code
  [Timberwolf Log Trading Ltd.; BCSC]." Also review [Lemare Lake Logging Ltd. #3; {paras 39-43}; BCSC].
• On an application for a blood warrant, the Justice of the Peace let the officer make the entire application and did not ask any questions except to facilitate the application. The ABQB held that the J.P.'s failure to ask any questions was a failure to act judicially, and the blood warrant that had been granted and the evidence obtained were both thrown out at trial. The court noted that the blood warrant section at s. 256 of the CC had four requirements that must be met at
  
  
  1. s. 256 (1)(a)
     {driving happened within 4 previous hours},
  2. s. 256 (1)(b)(i)
     {a qualified medical practitioner is of the opinion that the accused cannot consent to a sample},
  3. s. 256 (1)(b)(ii)
     {a qualified medical practitioner is of the opinion that the taking of a sample would not endanger the accused's life}, and
  4. s. 256 (4)
     {the answers to b and c above are still valid at the time the sample is taken).
  
  The justice ruled that the J.P. should have asked at least one question for each requirement to have been acting judicially
  [Petkau A.G.; {para 33}; ABQB].
  Review the suggested questions for an application for a blood warrant.
• Applicants must advise the Court as to whether or not the information they are attesting to is within their personal knowledge or if it has been obtained from another person
  [Nightingale, J.E.; {paras 66(4) and 67}; ABPC].
• "An accused person is entitled to a lawful warrant. Warrants may be obtained lawfully either under s. 487 or, as here, s. 487.1 {para 72}
  [Passon, G.; BCSC]."
• "The telewarrant system has been set up so that warrants can be obtained outside of the usual business hours of a local judge or justice of the peace {para 13}
  [Johnson, L.E.; BCPC]."
• When the applicants know that a judge will be available the next morning, they do not have to wait, and then appear personally
  [Huber, L.G.; {para 27}; BCPC, Lemiski, P.; {para 44}; OSCJ and Wolkowski, A.; {para 59}; OSCJ].
• Telewarrant applicants must still meet the basic standards of any intrusive warrant. Here no nexus was given for the allegation of fraud and how the items the applicant wanted to seize would help substantiate a crime {para 37}. Further it was noted that an earlier application had been rejected for just that reason {para 31}. The search warrant was quashed
  [Lemare Lake Logging Ltd. #1; BCSC].
  It is worth noting that an attempt to reopen the application 6 months later with fresh information was denied on the basis that the fresh advice did not reflect the situation 6 months previously
  [Lemare Lake Logging Ltd. #2; BCSC].

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