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[11] A general warrant is to be “used sparingly as a warrant of limited resort” so that it does not become an “easy back door for other techniques that have more demanding pre-authorization requirements”: Telus, at para. 56 (citation omitted).
[12] We agree that a warrant to be executed in the future upon the occurrence of a specified contingency is not a procedure contemplated by the conventional search warrant. While a conventional search warrant could have been obtained here, on the basis that there were reasonable grounds to believe that prohibited drugs were likely to be found in the premises, this procedure might not have linked the drugs to the appellant. As noted above, s. 11 of the CDSA provides that where there are reasonable grounds to believe there has been a contravention of the law relating to controlled substances, and that a controlled substance is in a place, a warrant may issue to search that place and seize the substance.
[13] As noted in R. v. Brand, 2008 BCCA 94 (CanLII), 229 C.C.C. (3d) 443, at paras. 50-51:
[T]here is nothing in the language of s. 487.01(1)(c) that precludes a peace officer from obtaining a general warrant solely because he or she has sufficient information to obtain a search warrant. Resort to a search warrant is only precluded when judicial approval for the proposed “technique, procedure or device or the doing of the thing” is available under some other federal statutory provision.
That the police are in a position to obtain a search warrant does not prevent them for continuing to investigate using all other lawful means at their disposal. Having regard to the requirements of s. 487.01(1)(a), I expect that in many cases the information the police present in support of an application for a general warrant would also support an application for a search warrant. I see nothing wrong in utilizing a general warrant to obtain information with a view to gathering additional and possibly better evidence than that which could be seized immediately through the execution of a search warrant.
[14] In Telus, the Supreme Court of Canada noted, at para. 71, that where police are confronted with the choice between a series of conventional warrants or an application for a general warrant, if they apply for a general warrant they must meet the stricter requirements of s. 487.01, which can only be issued by a judge, not a justice of the peace, and they must establish that it is in the best interests of the administration of justice to issue the general warrant.
[15] The court noted further, at para. 72:
In other words, by dint of its more stringent requirements, the general warrant contains a disincentive to its everyday use. In Ha and Brand, where the only alternative was a series of conventional warrants, reliance on a general warrant did not provide the police with an easy way out from the rigours of a more demanding legislative authorization – the general warrant was the more demanding legislative authorization. Thus, in these cases, it is harder to see how the general warrant provision might be misused.
[16] Unlike in Telus, here, there is no question of police evading stricter statutory requirements by seeking a general rather than a conventional warrant.
[17] It would have been much easier for police to ask for a search warrant from a locally situated justice of the peace, rather than travel to Leamington, Ontario as they did in this case, to ask a judge for a general warrant and attempt to establish the more stringent requirements.
[18] There is no statutory time limit for the execution of conventional search warrants, although it appears that the affiant here may have believed otherwise. When investigating drug related offences, the existence of reasonable grounds to believe that drugs are present immediately does not necessarily mean they will be present days later. Sometimes, a larger window for execution of a search warrant will be appropriate.
[19] We agree that prospective execution of a search, based on a future contingency, together with the simultaneous execution of related searches are not contemplated by a conventional search warrant. The general warrant was properly issued in this case, where the investigative technique proposed was not simply to seize the drugs but to link them to the accused and where there is no issue of evasion of a more stringent statutory regime.
[20] As indicated earlier, there was an ample basis for the issuing judge to conclude that the statutory elements required to obtain a general warrant were satisfied.
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