Other Investigative Powers

• Author: Steve Coughlan
• Pages: 131-163

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CHAPTER 5

OTHER INVESTIGATIVE

POW ER S

A. INTRODUCTION

This chapter deals with police investigative techniques other than

searches with and without a warrant that were discussed in Chapter

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

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

ber—but the discussion 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 warrants,”

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

issuance of search warrants discussed 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 discuss them in the Chapter 4. However, general war-

rants can authorize techniques going well beyond anything that one

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

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

are worth singling out for particular 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

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

CRIMINAL PROCEDURE

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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 without

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

expansion of police powers.

B. GENERAL WARRANTS: SECTION 487.01

Section 487.01 of the Code contains what is normally referred to as the

general warrant provision.1 It is a relatively recent provision, intended

to provide for warrants to perform i nvestigative techniques t hat 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.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 argued that they needed no special permission.

That is, in the absence of specif‌ic li mitations 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.”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.).

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

3 Ibid.

Other Investigative Powers133

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 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 bears on the matter.4

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

well’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 ac-

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

appears to have read the decision 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 Wongwas 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 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.”8 In other words, Parliament took a decision that

relied on the assumption that there 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].