Other Investigative Powers

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 159-199

159

CHA PTER 5

OTHER INVESTIGATIVE

POW ER S

A. INTRODUC TION

This chapter deals w ith police investigative techniques other th an

searches with a nd without a warrant, which were discussed in Ch apter

4. There are a number of such techniques — indeed, as the discussion

below will show, there is, in principle, no necessar y limit to their num-

ber — but the discussion here will focus on three specif‌ic areas. All

three areas, t his discussion suggests, show a signif‌icant expansion in

police powers, all postdating, and in some cases ironically due to, the

Charter.

First, section 487.01 of the Code, which creates “general war rants,”

will be exa mined. Most of the principles relating to the review of the

issuance of search wa rrants discussed in Chapter 4 apply equally to

these warrants, and they also authorize techniques that infr inge on

a reasonable expectation of privacy. As a result, it would have been

possible to discuss t hem in that chapter. However, general warrants

can authorize techniques going well beyond anything that one would

traditionally think of as a search — in t he terms of the statute, they are

available to authorize police to “do any thing” — and so they are worth

singling out for particular d iscussion.

Second, police powers of detention will be considered. There are

statutory powers of detention, some of which occur in the investiga-

tive process (breatha lyzer tests, for example, involve a power to detain).

What will be of most interest, however, are post-Charter developments

CRIMIN AL PROCEDURE160

in caselaw th at expand the powers of detention given to the police at

common law and, indeed, expand the notion of “common law powers”

themselves.

Finally, section 25.1 of the Code, which authorizes designated of-

f‌icers to break the law, will be discussed. It is perhaps obvious w ithout

elaboration that this provision might be a cause for concern about the

expansion of police powers.

B. GENER AL WAR R ANTS: SECTION 487.01

Section 487.01 of the Code contains what i s normally referred to as the

“general warr ant provision.”1 It was introduced in the wake of a decision

by the Supreme Court about warrantless searches, and is i ntended to

provide for warrants to perform i nvestigative techniques not covered

by other Code provisions. It is sometimes described as f‌il ling the gap

left by section 487 and other warrant provi sions in the Code, though it

is a question for debate as to whether there could properly have been

said to be a gap.

In R v Wong, the police had placed a small video camera in a hotel

room to record activities within.2 Had they wanted to audiotape the

room, they would have had to comply with the Code provisions de aling

with wiretaps. However, those provisions make no mention of video

cameras, so the police arg ued that they needed no special per mission;

that is, in the absence of spec if‌ic limitations on their powers, they were

free to use whatever investigative means they chose. That approach,

the Supreme Court decided, “wholly misunderstand s Duarte. It is the

Charter, specif‌ically s. 8, that protected the appellant there and it is

the Charter t hat protects the present appellant . . . s. 8 was de signed to

provide continuing protection against unrea sonable search and seizure

and to keep pace with emerging tech nological development.”3 In other

words, the Court relied on the principle that ind ividuals are to be free

1 It is worth being a ware of some ambiguity asso ciated with this ter m. The Code

contains se arch warrants in s 487 but al so has many much more speci f‌ic war-

rant powers (see Chapt er 4, Section C(1)(b)). Because there ar e so many specif‌ic

warrant prov isions, judges sometimes re fer to s 487 search warrants a s the

“general warra nt provisions.” In addition, one will occ asionally see references

to the common law pr inciple that there cannot be a “gener al warrant”: that is, a

search war rant must be aimed at a part icular person and part icular evidence:

see, for example, R v Noble, [1985] OJ No 809 at para 17 (CA).

2 R v Wong, [1990] 3 SCR 36 at para 28 [Won g].

3 Ibid.

Other Investigative Powers 161

from state interference unless such interference is specif‌ically author-

ized. The Court noted that, in the abs ence of authorization, video sur-

veillance fell into the general category of warrantless searches, which

are prima facie unre asonable. The Court also held that it was not their

role to create authorization for video surveill ance — that was a decision

for Parliament to make:

Until such time as Pa rliament, in its wi sdom, specif‌ically prov ides

for a code of conduct for a particular inva sive technology, the courts

should forebear from craft ing procedures authori zing the deploy-

ment of the technology in que stion. The role of the courts should be

limited to ass essing the constitutional ity of any legislation passed by

Parliament which be ars on the matter.4

One would most naturally read Wo ng, which refers to George Or-

well’s “classic dystopian novel” 19845 i n its reasoning, as a recognition

of the right of individuals to b e 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 funda mentally irreconcilable with what we perceive to be ac-

ceptable behaviour on the part of government.”6 However, Parliament

appears to have read the deci sion to make precisely the opposite invi-

tation. Section 487.01, although it does not quite allow agents of the

state to search “wherever and whenever” they wi sh, verges dangerously

close to that direction.7

Put broadly, the problem facing the police in Wong was that no war-

rant was available for placement of a video camera, but without a war-

rant, 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 e ssentially any

other case as well. Sect ion 487.01 creates war rants to “use any device

or investigative technique or procedure or do any thing described in

the warrant th at would, if not authorized, constitute an unreasonable

4 Ibid at para 36.

5 Ibid at para 15, referri ng to George Orwell, 1984 (New York: Harcourt, Brace,

1947 ).

6 Wo ng, above note 2.

7 One would, of course, comply w ith the letter of the principle, “the p olice only

have the powers e xplicitly given to them,” if one explicit ly gave the police the

power to do anyth ing, but that would clearly violate t he notion of restraint that

is the spir it of the principle. A similar appro ach can be seen in the govern ment’s

approach to the ru le of law ref‌lected in s 25.1 of the Code, discu ssed in Section

D, below in this ch apter.