General Warrants

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 209-244



General

Warrants

6

I. Overview ................................................. 

II. The Basic Authorization ..................................... 

III. The Statutory Criteria ....................................... 

A. Criterion : Reasonable Grounds to Believe That a Federal

Oence Has Been or Will Be Committed .................. 

B. Criterion : Reasonable Grounds to Believe That Information

Concerning the Oence Will Be Obtained ................. 

C. Criterion : It Is in the Best Interests of the Administration

of Justice to Issue the General Warrant ................... 

D. Criterion : There Is No Other Federal Statutory Provision

Available ............................................ 

E. Criterion : No Interference with Bodily Integrity ........... 

F. Criterion : Conditions to Ensure That Execution of the

General Warrant Will Be Reasonable ..................... 

IV. Commonly Used Techniques Under the General Warrant Power .... 

A. Covert Entry and Search, or “Sneak and Peek” ............. 

B. Video Warrants ...................................... 

C. Ruse—A General Warrant to Disguise or Conceal the

True Reasons for Detention/Arrest ...................... 

D. Bedpan Vigil ........................................ 

V. Conclusion ............................................... 

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Search and Seizure

I. Overview

Since 1892, the basic search warrant and its counterparts in other statutes have author-

ized police to search for and seize things believed to be in a given place. Advances in

investigative methods, often prompted by changing technology, eventually left the

police frustrated by the twin limitations on the traditional power to search for “things”

in “places.” The case that brought this to a head was R v Wong,1 where police installed

a hidden video camera in the curtain valence of a hotel room that police believed was

being used for illegal gambling. There was no statutory authority for prior judicial

authorization to do this, so police could not and therefore did not get a search warrant.

The Supreme Court of Canada ruled that this video surveillance amounted to an un-

authorized and unreasonable search within section 8 of the Charter.

Enter the general warrant in 1993. Originally conceived to respond to the ruling

in Wong and the need for prior judicial authorization for covert video surveillance,

the general warrant power that emerged in Criminal Code section 487.01 is much

broader. It is ready to authorize any investigative technique—literally, “to use any

device or investigative technique or procedure or do any thing”—that would intrude

upon a person’s reasonable expectation of privacy, assuming the requisite grounds

are shown. One important limit, discussed below, is that a general warrant may not be

used where another type of warrant, limit, or authorization is available instead. An-

other is that the general warrant may not intrude upon bodily integrity.

II. The Basic Authorization

Section 487.01 of the Criminal Code provides:

487.01(1) A provincial court judge, a judge of a superior court of criminal jurisdiction

or a judge as defined in section 552 may issue a warrant in writing authorizing a peace

ocer to, subject to this section, use any device or investigative technique or procedure

or do any thing described in the warrant that would, if not authorized, constitute an un-

reasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable

grounds to believe that an oence against this or any other Act of Parliament has been

or will be committed and that information concerning the oence will be obtained

through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice

to issue the warrant; and

(c) there is no other provision in this 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.

1 [1990] 3 SCR 36, 1990 CanLII 56.

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter  General Warrants 

(2) Nothing in subsection (1) shall be construed as to permit interference with the

bodily integrity of any person.

(3) A warrant issued under subsection (1) shall contain such terms and conditions as the

judge considers advisable to ensure that any search or seizure authorized by the warrant

is reasonable in the circumstances.

Below we discuss some of the more common investigative techniques used under

a general warrant, but in principle it is an open category. Thus, Crown counsel who

is asked by police whether they can seek a general warrant to perform a certain inves-

tigative technique (assuming there are grounds) may answer: “Of course, so long as

you can carefully describe what it is you want to do, and the issuing judge clearly

understands what they are being asked to authorize you to do—and there is no other

warrant or order that already covers the technique.” The proposed technique must

also comply with the other specific elements of the general warrant scheme, also dis-

cussed below. The point is that with one and only one exception—interference with

bodily integrity—there are no statutory limits on what investigative techniques a gen-

eral warrant can authorize.2 There are, however, special considerations concerning

video cameras in private places as well as Charter considerations, as discussed below.

The standard for obtaining a general warrant—reasonable grounds to believe—is

no lower than the standard for obtaining a regular search warrant. Further, the Supreme

Court of Canada has cautioned that police should not be using a general warrant to do

something that, in substance, is already contemplated by another search or seizure power

that may have more onerous threshold requirements, such as a wiretap authorization.3

III. The Statutory Criteria

There are six basic statutory criteria for the issuance of a general warrant, and the

peace ocer4 applying for a general warrant should address each in the Information

to Obtain (ITO). The issuing judge5 must be satisfied that:

1. there are reasonable grounds to believe that a federal oence has been or will be

committed;

2 R v Ha, 2009 ONCA 340 at para 24.

3 R v Telus Communications Co, 2013 SCC 16 at para 80, MoldaverJ.

4 Section 487.01(1) refers to a “peace ocer,” which does not include a “public ocer,” as (e.g.)

s487 does.

5 Only a judge of the provincial or superior court can issue a general warrant: Criminal Code

s487.01(1). There is some uncertainty about whether only a superior court judge can grant a

general warrant authorizing video surveillance because of its reference to the wiretap provi-

sions, as discussed later in this chapter.

© [2021] Emond Montgomery Publications. All Rights Reserved.