Other Investigative Powers

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 117-148

117

CHA PTER 5

OTHER INVESTIGATIVE

POW ER S

A. INTRODUCTION

This chapter deals with police investigative techniques other th an

searches with and without a warrant that were discussed in Chapter

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

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, this di scussion suggest s, show a recent and signif‌ic ant ex-

pansion in police powers.

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

will be examined. Most of t he principles relating to the review of the

issuance of search warrants discussed in the previous chapter apply

equally to these warrants, and they also authori ze technique s that in-

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

been possible to discuss them in the Chapter 4. However, general war-

rants can authorize techniques going well beyond anything t hat one

would traditionally think of as a search — in the terms of the statute

they are available to authorize police to “do any th ing” — and so they

are worth singling out for particul ar discussion.

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

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

tive process (breathalyzer tests, for example, involve a power to de-

tain). What will be of most interest, however, are recent developments

CRIMIN AL PROCEDURE118

in caselaw t hat 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 obv ious without

elaboration that this provi sion might be a cause for concern about the

expansion of police powers.

B. GENERA L WARR ANTS: SECTION 487.01

Section 487.01 of the Code contains what is nor mally referred to a s the

general war rant provision. It 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 Cod e, 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 c amera in a hotel

room to record activities within.1 Had they wanted to audiotape the

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

with wiretaps. However, t hose provisions make no mention of v ideo

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 misunderstand s Duarte. It is the Charter, specif‌ically s. 8, that

protected t he appell ant there and it is t he Charte r that protect s the

present appellant . . . s. 8 was designed to provide conti nuing protec-

tion again st unrea sonable search and s eizure and to keep pace with

emerging technologic al development.2

In other words, the Court relied on the principle that indiv iduals are

to be free from state interference unle ss such interference is specif‌ic-

ally authorized. The Court noted t hat, in the absence of authorization,

video surveil lance fell into the general category of warra ntless search-

es, which are prima facie unrea sonable. The Court also held that it was

not their role to create authorization for video surveilla nce — that was

a decision for Parliament to make:

1 R. v. Wong, [1990] 3 S.C.R. 36 at para. 28 [Wong ].

2 Ibid.

Other Invest igative Powers 119

Until such time as Parliament, in it s w isdom, specif‌ica lly provides

for a code of conduct for a par ticular inv asive technology, the court s

should forebear from c rafting procedures authorizing the deploy-

ment of the technolog y in question. The role of the courts should be

limited to asse ssing the constitutionality of any legisl ation passed by

Parliament which be ars on the matter.3

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

well’s “classic dystopian novel” 19844 in its reasoning, as a recog nition

of the right of individuals to b e generally free from state interference:

The notion that the agencies of the st ate should be at liberty to t rain

hidden camera s on members of society wherever a nd whenever they

wish is fund amentally irreconcilable with wh at we perceive to be ac-

ceptable behaviour on t he part of government.5

However, Parliament appears to have read the decision to make pre-

cisely 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.6

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

rant was avai lable 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 ca ses of video surveillance, and in essentially any

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

or investigative technique or procedure or do any thing described in

the war rant th at would, if not authorized, constitute an unreasonable

search and seizure.”7 In other words, Parliament took a decision t hat

relied on the assumption that there need to be limits to police investiga-

tive techniques and used it to just ify a provision creat ing an unlimited

range of potential police investigative techniques. It is hard to reconcile

this approach with the conclusion in Hunter v. Southam that

3 Ibid. at para. 36.

4 Ibid. at para. 15, refer ring to George Orwell, 19 84 (New York: Harcourt , Brace,

1947 ).

5 Wong, ibid.

6 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 explic itly 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 appr oach can be seen in the govern ment’s

approach to the ru le of law ref‌lected in s. 25.1 of the Code, disc ussed in Section

D, below in this ch apter.

7 Section 487.01(1) [emphasis added].