Other Investigative Powers

AuthorSteve Coughlan
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 area s. All
three areas, t his discussion suggests, show a significant expansion in
police powers, all postdating, and in some cases ironically due to, the
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
Other Investigative Powers 215
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”
Finally, section 25.1 of the Code, which authorizes design ated offi-
cers to break the law, will be di scussed. It is perhaps obvious w ithout
elaboration that this provision might be a cause for concern about the
expansion of police powers.
Se ct io n 4 87.01 1 of the Code contains what is normally referred to as the
“general warr ant provision.”2 It was introduced in the wake of a deci-
sion by the Supreme Court about warrantless se arches and is intended to
provide for warrants to perform i nvestigative techniques not covered by
other Code provisions. It is sometimes described as filling the gap left by
section 487 and other warrant provi sions in the Cod e, though it is a ques-
tion for debate as to whether there could properly have been said to be a
gap. Section 487.01 has had something of a checkered interpretive jour-
ney: for about two decades it was interpreted by lower courts in a ver y
broad fashion creating an almost unlimited array of police powers, unti l
in 2013 the Supreme Court gave guidance which narrowed the legiti mate
use of the provision. The net result is that the section quite arguably has
been given an interpretation t hat is broader than Parliament had in mind,
but where the worst excesses are probably now in check.
In R v Wong, the police had placed a small video c amera in a hotel
room to record activities with in.3 Had they wanted to audiotape the room,
they would have had to comply with the Code provision s dealing with
wiretaps. However, those provisions made no mention of video cameras,
so the police argued that they needed no special permission; that is, in
1 For an explanat ion of these provisions in ch art form, see Steve Coughlan &
Alex Gorlewski, The An atomy of Criminal Procedure: A Visual Guide to the L aw
(Toronto: Irwin Law, 2019) [Anatomy of Criminal Procedure], Chart 1.1(b)(iv),
“Section 487.01 General Warrants.”
2 It is worth bein g aware of some ambiguity ass ociated with this te rm. The Code
contains se arch warrants in s ection 487 but also has many much more s pecific
warrant powe rs (see Chapter 4, Section C(1)(b)). Because there are so many
specific wa rrant provisions, judges s ometimes refer to section 487 sea rch war-
rants as t he “general war rant provisions.” In addition, one wi ll occasionally see
references to the com mon law principle that there c annot be a “general warrant”:
that is, a sea rch warrant must be aime d at a particular person a nd particular
evidence: see, for ex ample, R v Noble, [1985] OJ No 809 at para 17 (CA).
3 R v Wong, [1990] 3 SCR 36 at para 28 [Wong ].
the absence of specific lim itations on their powers, they were free to use
whatever investigative means they chose. That approach, the Supreme
Court decided, “wholly misunderst ands Duarte. It is t he Charter, spe-
cifically s. 8, that protected the appellant there and it is the Charter that
protects the present appellant . . . s. 8 was designed to provide continu-
ing protection against unreasonable search and seizure and to keep pace
with emerging technological development.4 In other words, the Court
relied on the principle that indiv iduals are to be free from state interfer-
ence unless such interference is spec ifically authorized. The Court noted
that, in the absence of authorization, video surveillance fell into the gen-
eral category of warrantless searches, which are pr ima facie unrea son-
able. The Court also held that it was not their role to create authoriz ation
for video surveillance — th at was a decision for Parliament to make:
Until such time as Pa rliament, in its wi sdom, specifical ly provides
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.5
One would most naturally read Wo ng, which refers to George
Orwell’s “classic dystopian novel” 1984 6 in its reasoning, as a recogni-
tion of the right of individuals to be generally free from state interfer-
ence: “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 w ith what we perceive to
be acceptable behaviour on the part of government.”7 However, Parlia-
ment appears to have read the decision as making precisely the oppos-
ite invitation. Section 487.01, although it does not quite allow agents of
the state to search “wherever and whenever” they wish, verges danger-
ously close to that direction.8
Put broadly, the problem facing the police in Wong was that no
warrant was avai lable for placement of a video camera, but without a
4 Ibid.
5 Ibid at para 36.
6 Ibid at para 15, referring to George Or well, 1984 (New York: Harcour t, Brace, 1947).
7 Wong, ab ove note 3.
8 One would, of course, comply with the lette r of the principle, “the police 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 section 2 5.1 of the Code, dis cussed in
Section D, below in th is chapter.

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