Special Criminal Code and Other Federal Statutory Search Powers

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 245-291

245

Special Criminal

Code and Other

Federal Statutory

Search Powers

7

I. Special Criminal Code Search Powers ......................... 246

A. Proceeds of Crime ................................... 246

B. Medical Records .................................... 259

C. Weapons Searches .................................. 261

D. Hate Crimes ....................................... 264

E. DNA Warrants ...................................... 265

F. Impression Warrants ................................. 266

G. Section 529(1)—Feeney Warrants (Criminal Code) ........ 267

II. Powers of Search and Seizure Under Other Federal Statutes ...... 271

A. Controlled Drugs and Substances Act Searches ........... 271

B. Income Tax Act Searches ............................. 275

C. Excise Act Searches .................................. 279

D. Customs Act Searches ............................... 281

E. Canadian Security Intelligence Service Act Searches ........ 285

III. Conclusion .............................................. 291

© [2021] Emond Montgomery Publications. All Rights Reserved.

246Search and Seizure

While the section 487 Criminal Code warrant described in Chapter 4 is the most com-

mon search tool in the criminal law enforcement toolkit, there are many other statutory

search and seizure powers contained both in the Criminal Code and in other federal stat-

utes. In this chapter, we set out some of the more common statutory search and seizure

powers and the key principles animating each regime.

I. Special Criminal Code Search Powers

A. Proceeds of Crime

The Criminal Code contains a distinct regime for dealing with the lawful seizure of

property that is the product of or otherwise associated with criminal activity. Addi-

tionally, where that criminal activity is orchestrated by organized crime, the Crown

may resort to additional, enhanced powers for seizing that property. Beyond the pro-

ceeds of crime provisions of the Criminal Code, the Proceeds of Crime (Money Laun-

dering) and Terrorist Financing Act imposes various record-keeping and reporting

requirements on various classes of businesses and professionals.1 It also empowers

the search and seizure of currency and goods that move across borders.

. Proceeds of Crime and Forfeiture Orders Under the Criminal Code

Seizure of “proceeds of crime” is addressed in Part XII.2 of the Criminal Code.2

These provisions appear convoluted at first blush, but their purpose is simple—to

ensure that crime does not pay and to deter oenders by depriving them of their

ill-gotten gains.3 The Supreme Court of Canada has emphasized the “paradigmatic

shift” that the proceeds-of-crime provisions represent. They involve a shift from the

“traditional, single transaction, individual-oriented structure of criminal law with

which Canadians are familiar, to one that is both property driven and premised upon

multiple transactions perpetrated by criminal organizations.”4 This regime therefore

1 Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 [PCMLTFA].

The provisions that imposed record-keeping and client identification obligations on lawyers

were struck down by the Supreme Court of Canada in Canada (AG) v Federation of Law Soci-

eties of Canada, 2015 SCC 7 as infringing ss 7 and 8 of the Charter in a manner that was not

justifiable under s1.

2 Readers should be mindful that, in addition to the regime contained in Part XII.2, s490.1 also

addresses the forfeiture of oence-related property:

Oence related property means any property … (a) by means or in respect of which an

indictable oence under this Act or the Corruption of Foreign Public Ocials Act is com-

mitted, (b) that is used in any manner in connection with the commission of such an

oence, or (c) that is intended to be used for committing such an oence.

See also Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA], s16(1).

3 R v Rafilovich, 2019 SCC 51 at para 2.

4 R v Lavigne, 2006 SCC 10 at para 8, quoting from PM German, Proceeds of Crime: The Crim-

inal Law, Related Statutes, Regulations and Agreements, looseleaf (Scarborough, Ont: Carswell,

1998) at 3-4.

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter 7 Special Criminal Code and Other Federal Statutory Search Powers 247

“focuses upon the proceeds of crime, as opposed to the oender” in order to “neu-

tralize criminal organizations rather than punish individual oenders.”5

To that end, the Part XII.2 regime is geared towards three main areas:

1. the search for and seizure of property that is reasonably believed to be the proceeds

of crime;

2. a determination of whether the property is the proceeds of crime to be forfeited in

accordance with this Part; and

3. ensuring that innocent third parties are not unduly prejudiced.

“Proceeds of crime” is defined broadly as:

any property, benefit or advantage, within or outside Canada, obtained or derived dir-

ectly or indirectly as a result of

(a) the commission in Canada of a designated oence, or

(b) the act or omission anywhere that, if it had occurred in Canada, would have

constituted a designated oence.6

The term “property” in this context has been interpreted to permit forfeiture of a

partial interest in the property.7

In order for property to fall within the definition of “proceeds of crime,” and thus

subject to forfeiture under section 462.37, it must arise from a “designated oence.”

A designated oence is defined broadly as “any oence that may be prosecuted as an

indictable oence … other than an indictable oence prescribed by regulation,” or “a

conspiracy or an attempt to commit, being an accessory after the fact in relation to, or

any counselling in relation to” an indictable oence.8

. Special Warrant Seizure Proceedings—the Application

Movable property may be seized pursuant to section 462.32. An application under

this section commences by way of written application on oath to a Superior Court

judge9 setting out the aant’s belief of the following:

1. that the oence or matter under investigation is a designated oence,

2. that a person possesses the targeted property, and

5 Ibid.

6 Criminal Code, s462.3.

7 R v Marriott, 155 CCC (3d) 168, [2001] NSJ No 183 (QL) at para 28 (CA). See also R v Craig,

2009 SCC 23, in the context of oence-related property, discussing partial forfeiture of real

property.

8 Criminal Code, s462.3; R v Honickman, 2015 ONCJ 770 at para 35.

9 Criminal Code, s462.32.

© [2021] Emond Montgomery Publications. All Rights Reserved.