B. General Warrants: Section 487. 01

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 132-140

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Section 487.01 of the Code contains what is normally referred to as the general warrant provision.¹It is a relatively recent provision, intended to provide for warrants to perform investigative techniques that are not covered by other Criminal Code provisions. It is sometimes described as filling the gap left by section 487 and other warrant provisions in the Code, though it is a question for debate as to whether there could properly have been said to be a gap.

In Wong, the police had placed a small video camera in a hotel room to record activities within.²Had they wanted to audiotape the room, they would have had to comply with the Code provisions dealing with wiretaps. However, those provisions make no mention of video cameras, so the police argued that they needed no special permission. That is, in the absence of specific limitations on their powers, they were free to use whatever investigative means they chose. That approach, the Court decided, "wholly misunderstands Duarte. It is the Charter, specifically s. 8, that protected the appellant there and it is the Charter that protects the present appellant . . . s. 8 was designed to provide continuing protection against unreasonable search and seizure and to keep pace with emerging technological development."³In other words, the Court relied on the principle that individuals are to be free from state interference unless such interference is specifically authorized. The Court noted that, in the absence of authorization, video surveil-

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lance fell into the general category of warrantless searches, which are prima facie unreasonable. The Court also held that it was not their role to create authorization for video surveillance-that was a decision for Parliament to make:

Until such time as Parliament, in its wisdom, specifically provides for a code of conduct for a particular invasive technology, the courts should forebear from crafting procedures authorizing the deployment of the technology in question. The role of the courts should be limited to assessing the constitutionality of any legislation passed by Parliament which bears on the matter.⁴One would most naturally read Wong, which refers to George Orwell’s "classic dystopian novel" 1984⁵ in its reasoning, as a recognition of the right of individuals to be generally free from state interference: "The notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the part of government."⁶However, Parliament appears to have read the decision to make precisely the opposite invitation. Section 487.01, although it does not quite allow agents of the state to search "wherever and whenever" they wish, verges dangerously close to that direction.⁷Put broadly, the problem facing the police in Wong was that no warrant was available for placement of a video camera, but without a warrant the search was prima facie unreasonable. Parliament’s response to the decision was to enact section 487.01, which is aimed at avoiding loss of evidence in cases of video surveillance, and in essentially any other case as well. Section 487.01 creates warrants to "use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search and seizure."⁸In other words, Parliament took a decision that relied on the assumption that there need to be limits to police inves-

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tigative techniques and used it to justify a provision creating an unlimited range of potential police investigative techniques. It is hard to reconcile this approach with the conclusion in Hunter v. Southam that "an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search and seizure, must focus on its ‘reasonable’ or ‘unreasonable’ impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective."⁹Section 487.01 seems to be justified only for the purpose of furthering a government objective.

Section 487.01 can be thought of as containing two investigative techniques: i) the very general power noted above, and ii) the power to engage in video surveillance. As additional requirements are imposed on video surveillance, it is sensible to discuss the more general power first.¹⁰It is most useful to examine the general warrant in terms of the similarities and differences that arise from a comparison with section 487. Some features are common to the two provisions. A warrant in each depends on reasonable grounds being established by an information provided on oath, for example. A section 487.01 warrant also does not permit interference with bodily integrity, and can be subject to conditions. Both of these requirements are specifically stated in section 487.01, though they were only implicit in section 487.¹¹

Of the requirements that are unique to section 487.01, some make the provision wider than the standard search warrant provision, while others are intended to attach greater restrictions. This, of course, is as it should be in a provision intended to balance competing interests, though it is questionable whether the balance has been adequately achieved.

The general warrant provision is obviously more broad not only because it allows a search for physical evidence, but also because it allows the police to use any device, technique, procedure or "do any thing." The Ontario Court of Appeal has held that "do any thing" is to be read literally and broadly and is not limited to things like the use of devices.¹²In particular, that means that section 487.01 can be used to issue a warrant to search a location, as section 487 potentially authoriz-

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es. This is significant primarily because of another way in which section 487.01 is more broad than section 487. That is, it allows an application based not just on reasonable grounds to believe that an offence has been committed, but on the basis that an offence "will be committed."¹³

In combination, these interpretations mean that the general warrant provision creates an "anticipatory search warrant." In that context, it is worth noting that the general warrant provision is also broader (although it cannot interfere with bodily integrity) in that such a search is not limited to a building, receptacle, or place, as section 487 is.

An additional requirement in section 487.01(1)(c) is that no other statutory provision can authorize the procedure in question. It is primarily worth noting what this provision does not mean.

First, this requirement does not prevent the police from obtaining a general warrant even though a search warrant might already be available: even if they are in a position to conduct a search and seizure, the police are still entitled to use other investigative techniques and to obtain a general warrant to do so.¹⁴Further, this section is not the equivalent of the section 186(1)(b) limitation on wiretaps that no other technique is likely to succeed. That provision is intended to act as a limit on the use of wiretaps, by showing that they are, if not precisely a last resort, something similar to that.¹⁵

The intention behind section 487.01(1)(c) is not to provide a limit but to show that there are no limits on the techniques potentially author-izable. If no other Code section or statute authorizes the procedures, then section 487.01 can authorize it. For example, courts have considered applications under section 487.01: to install a digital recording ammeter for the purpose of recording the cycling pattern of electricity usage in a residence,¹⁶to make electronic copies of data in a computer

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system,¹⁷to perform phallometric testing,¹⁸to use a forensic fluorescent light to illuminate the inside of a vehicle to look for bloodstains,¹⁹and to record the sender...