Other Investigative Powers

• Author: Steve Coughlan
• Pages: 131-163

131

CHA PTER 5

OTHER INVESTIGATIVE

POW ER S

A. INT RODUC TION

This chapter deals with police investigative techniques other th an

searches with a nd without a warrant that were discussed in Chapter

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

below will show there is in principle no necessary limit to their num-

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

three areas, this discussion suggests, show a recent and signif‌icant ex-

pansion in police powers.

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 discu ssed in the previous chapter apply

equally to these warrants, and they also authorize techniques that in-

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

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

rants can authorize techniques going well beyond anything t hat one

would traditionally thi nk 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 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 (breatha lyzer tests, for example, involve a power to de-

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

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

CRIMIN AL PROCEDURE

132

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

themselves.

Finally section 25.1 of the Code, which authorize s 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

expan sion of police powers.

B. GENER AL WAR R ANTS: SECTION 487.01

Section 487.01 of the Code contains wh at is normally referred to as the

general war rant provision.1 It is a relatively recent provi sion, intended

to provide for warrants to perform i nvestigative techniques t hat are not

covered by other Criminal Code provisions. It is sometime s described

as f‌illing the gap left by sect ion 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 withi n.2 Had they wanted to audiotape the

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

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 specif‌ic li mitations on their powers, they were

free to use whatever investigative mean s they chose. That approach,

the Court decided, “wholly misunderstands Duarte. It is the Charter,

specif‌ically s. 8, th at protected the appellant there and it is the Charte r

that protects the present appellant . . . s. 8 was designed to provide

continuing protection against unreasonable search and seizure and to

keep pace with emerging technologica l development.”3 In 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-

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 a lso has many much more speci f‌ic war-

rant powers (see Chapt er 4, section C(3)). Because there are so many s pecif‌ic

warrant prov isions, judges sometimes re fer to s. 487 search warrant s as the

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

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] O.J. No. 809 at para. 17 (Ont. C.A.).

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

3 Ibid.

Other Investigative Powers 133

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 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 authoriz ing the deploy-

ment of the technology in quest ion. The role of the courts should be

limited to ass essing the constitutional ity of any legisl ation 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 recognit ion

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 trai n

hidden cameras on members of society wherever and whenever they

wish is funda mentally irreconcilable with wh at 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 pr ima 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 warrants 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

search and sei zure.”8 In other words, Parliament took a decision that

relied on the assumption that t here need to be limits to police inves-

4 Ibid. at para. 36.

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

1947 ).

6 Wong, ibid.

7 One would, of course, comply w ith the letter of the principle, “t he police 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.

8 Section 487.01(1) [emphasis added].