Ancillary Orders

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 319-350

319

Ancillary Orders

9

I. Overview ................................................ 320

II. Assistance Orders ........................................ 320

A. Civilian Assistance Without an Assistance Order .......... 323

B. Assistance Orders Implicating Competing Interests ........ 327

C. Assistance Order Directed to the Target of the Search? ..... 329

D. TDR Warrants, Subscriber Information, and Assistance

Orders ............................................ 333

E. Assistance Orders and Costs .......................... 335

III. Sealing Orders ........................................... 338

A. Grounds for Sealing ................................. 339

B. Review of Sealing Orders—Media Access ................ 341

C. Review of Sealing Orders—Access by Persons

Not Charged ....................................... 342

D. Procedure for Unsealing .............................. 343

E. Miscellaneous Practical Issues ......................... 344

IV. Non-Disclosure Orders .................................... 345

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320Search and Seizure

I. Overview

The Criminal Code provides for ancillary orders that complement search warrants and

production orders. In this chapter we discuss assistance orders, sealing orders, and non-

disclosure orders.

Assistance orders under Criminal Code section 487.02 are generally directed to

third parties in order to authorize and require their assistance and to overcome any

legal, contractual, or moral obligation the third party may otherwise have, or feel they

have, to not provide information to the police in an investigation of a client, business

associate, or acquaintance. Assistance orders are available only in conjunction with

wiretaps, search warrants, and general warrants, but not production orders or other

similar types of judicial authorizations (e.g., preservation demands and preservation

orders) because assistance is built into those orders. Sealing orders are statutorily

provided for in Criminal Code section 487.3 and apply to any warrant as well as the

preservation and production orders in sections 487.013 to 487.018. Some judicial

authorizations (e.g., a restraint order for suspected proceeds of crime, under Criminal

Code s462.33) are not covered by section 487.3, so if a sealing order is needed it would

be based instead on the court’s inherent jurisdiction to control its own process. Some

non-disclosure orders are provided by statute—such as section 487.0191—while

others are based on the authority to impose reasonable conditions associated with a

warrant or related order, and are intended to prohibit the subject of a warrant or order

from disclosing to the target of an investigation, or others, the fact that there is an on-

going investigation and that a warrant has been executed, or that the person is subject

to an assistance order or production order.

II. Assistance Orders

Section 487.02, enacted in 1993 along with the general warrant provision in section

487.01, allows an issuing judge to order a person to assist the police in the execution

of a wiretap or warrant:

Assistance order

487.02 If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is

issued under this Act, the judge or justice who gives the authorization or issues the war-

rant may order a person to provide assistance, if the person’s assistance may reasonably

be considered to be required to give eect to the authorization or warrant. The order has

eect throughout Canada.1

Note that the 2019 revisions to the Criminal Code (Bill C-75) now provide that an

assistance order has eect throughout Canada (the last sentence in the extract above).

1 Criminal Code, s487.02.

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Chapter 9 Ancillary Orders 321

Importantly, an assistance order is not a stand-alone judicial authorization. As

the language of section 487.02 makes clear, an assistance order may only accom-

pany a wiretap authorization or warrant (search warrant, general warrant, DNA war-

rant, etc.).2 An assistance order cannot be built into a production order, but should

not need to be, as a production order requires the subject—who is in possession or

control of the documents or data sought—to participate in producing the evidence

required. In the case of a wiretap authorization or a warrant, the assistance order will

normally be built into the wording of an omnibus authorization or warrant itself as a

separate clause. Assistance orders are the norm with wiretap authorizations, which by

definition are covert, but are less common with warrants.

An assistance order is only in force so long as the authorization or warrant is in

eect.3 In the case of a wiretap authorization, this will normally be the 60-day period

for which the wiretap is in eect. In the case of a search warrant, if police expect that

third party assistance may take some time, the Information to Obtain (ITO) should

discuss that, and the warrant (with assistance order built in) should include an appro-

priate time frame for execution (commonly 60 days).

In the wiretap context, assistance orders are usually directed to telecommunication

service providers to authorize and require them to assist the police in carrying out

the wiretap authorization. Such assistance usually involves matters like disclosing the

customer subscriber information connected to telephone numbers or email addresses

and allowing the police technical team to actually give eect to the interception by

means of technology under the telco’s control and so on. These are things the police

cannot do without the telco’s assistance, and as the language of section 487.02 con-

templates, the assistance order is triggered “if the person’s assistance may reasonably

be considered to be required to give eect to the authorization or warrant.”

In the search warrant context, the scope of an assistance order is not limited by

section 487.02 as long as it is logically connected to the warrant, in the sense of being

reasonably considered to be required to give eect to the warrant—the language of

section 487.02 itself. Anyone can be the subject of an assistance order. (Below we dis-

cuss whether assistance orders can compel the subject of the investigation to assist.)

Assistance orders are commonly directed at those who are willing to assist the police but

are bound by a real or perceived legal or moral duty not to do so. This includes persons

such as bankers, accountants, real estate agents, car rental companies, landlords, and

more recently telcos, all of whom may either actually owe a legal duty of loyalty to their

clients or may perceive that they owe a moral duty of loyalty. A section 487.02 assist-

ance order in connection with a search warrant will usually override the subject’s

2 See Canada Post Corp v Canada (AG), 1995 CanLII 7421 at para 5, 95 CCC (3d) (Ont Ct J (Gen

Div)); the original warrant and assistance order was directed only at Canada Post without any

warrant directed to the police; it was therefore invalid.

3 See R v Salmon, 2018 ONSC 5670 at para 77.

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