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Solomon Friedman: Even without Bill C-30, police have considerable search powers

(2012-02-24)

Even without Bill C-30, police have considerable search powers

By Solomon Friedman

Ottawa Citizen
February 24, 2012

OTTAWA — The furor generated by Bill C-30, the government’s proposed initiative to enhance the Internet surveillance powers of police, has brought privacy issues to the forefront and added new phrases to the Canadian lexicon, like “warrantless search” and “lawful access.”

The debate has also exposed gaps in the public’s understanding of the existing powers of law enforcement to search homes, seize items and intercept private communications.

The starting point for an examination of police search powers in Canada is the guarantee under the Charter “to be secure against unreasonable search or seizure.”

As a general rule, therefore, police require approval by a judge or justice before searching an individual’s belongings, vehicle or residence.

People may be familiar with the classic “search warrant” scenario, where police are empowered to enter one’s home to search for and seize evidence of an offence.

Under the Criminal Code, however, police have a wide range of warrant-like, investigative tools at their disposal.

Through the “general warrant” power, a judge can authorize police to surreptitiously interfere with private property and engage in conduct that would otherwise be illegal. For example, such a warrant can empower police to intercept mail, trespass on private property and plant listening and video-recording devices in a suspect’s home or vehicle.

And, unlike the execution of a traditional search warrant, where the homeowner is given a copy of the warrant and is aware of the search being conducted, “general warrant” searches are ordinarily carried out in secret, only to be revealed when eventual arrests are made and the investigation is concluded.

In addition, the Criminal Code allows for a warrant to authorize the planting of GPS tracking devices. Police can be authorized to attach such a device to a suspect’s vehicle or other belongings and monitor their movements from afar.

Police can also be granted permission by a judge to intercept private communications, such as phone calls, text messages and emails, under a Criminal Code wiretap authorization.

Another warrant-like police power is the “production order.” Upon authorization by a justice, police can compel persons or institutions, such as banks, insurance companies and credit unions, to provide the authorities with copies of an individual’s otherwise private records.

Each of these “authorizations” has something in common – which sets the existing regime apart from the proposed warrantless intrusions set out in Bill C-30 – the officer seeking the warrant must swear before a judicial officer that he or she has reasonable grounds to believe that the search will yield evidence of an offence.

In this regard, however, the officer’s word alone is insufficient. The officer must also describe, in detail, the background investigative material that supports the issuance of the warrant.

Moreover, the justice issuing the warrant is dutybound to assess the information with a critical and skeptical view. Should the officer’s material fail to satisfy the applicable legal standard, the justice must reject the warrant application.

Specifically, the police are not entitled to use a search warrant as a pretext for a “fishing expedition.” Therefore, mere suspicion of an offence is insufficient. Objectively verifiable information, based on hard evidence, must be provided to the issuing justice.

It is also important to note that the constitutional protection from “unreasonable” searches not only governs the nature of the search, but the conduct of the police as well.

For example, where police use more force than necessary in conducting a search, a court may find the conduct of the search unreasonable and therefore unconstitutional.

Accordingly, when executing an ordinary search warrant for a private residence, police should do so during daylight hours. Moreover, the police are expected to knock, announce their presence and request entry.

“No knock” warrants or “tactical entries,” while permitted in Canada under some circumstances, are the exception and not the rule. The battering ram is not the default mode of entry.

Of course, a constitutional guarantee is of little value unless it is supported by constitutional remedies. Where police conduct unauthorized or otherwise unreasonable searches, any evidence they gather may be excluded by a judge at trial and, in the most extreme cases, the charges themselves may be dismissed.

By raising these important issues to the forefront, the debate over Bill C-30 has been a valuable one. It has focused the often apathetic Canadian political consciousness on the considerable powers and investigative tools already granted to law enforcement.

In the end, perhaps the most valuable lesson Canadians have learned from the C-30 saga is that you don’t need to stand “with the child pornographers” to stand up for privacy and fundamental constitutional freedoms.

Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at Twitter.com/firearmslaw.

© Copyright (c) The Ottawa Citizen

 
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