R. v. Ha, 2009 ONCA 340
Background
[23] Section 487.01 came into force in August 1993 (S.C. 1993, c. 40) along with several other provisions relating to police investigative powers. Those sections were designed to supplement the traditional search warrant power found in s. 487. A [page760] warrant under s. 487.01 can only be issued by a judge. The judge must be satisfied that:
-- there are reasonable and probable grounds to believe that an offence has been or will be committed (s. 487.01(1)(a));
-- information concerning the offence will be obtained through the use of the investigative means authorized in the warrant (s. 487.01(1)(a));
-- the issuance of the warrant is in the best interests of the administration of justice (s. 487.01(1)(b)); and
-- no other provision in the Act or other federal legislation provides for a warrant authorizing the investigative means sought to be used (s. 487.01(1)(c)).
[24] There are significant differences between the investigative powers described in s. 487 and those set out in s. 487.01. Unlike s. 487, s. 487.01 is not limited to searches of "a building, receptacle or place". There are no spatial limitations on s. 487.01. Nor is it limited to any particular investigative technique or procedure. Apart from a prohibition against interference with the bodily integrity of a person (s. 487.01(2)), there are no express limits on the investigative methods that may be authorized.
[25] Section 487.01 fundamentally alters the traditional search warrant paradigm. Instead of legislation permitting judicial authorization of a specific investigative method (search and seizure) where certain statutory conditions are met, s. 487.01 speaks to any situation in which the police seek judicial authority to do something that, absent that authority, would constitute a breach of s. 8 of the Charter. Section 487.01 ensures that the determination of whether the police will be allowed to use a specific investigative means (not involving interference with bodily integrity) in any given case will be decided by balancing the state interest in law enforcement and the individual interest in privacy. The state will not be denied access to investigative methods that are constitutionally justified because the relevant statute does not contemplate the specific investigative means that the police seek to use.
[26] Section 487.01 recognizes that Parliament cannot anticipate or imagine all investigative means or techniques that are or will become available to the police. Section 487.01 focuses not on authorizing specific techniques, at least where there is no interference with bodily integrity, but rather on whether the public interest in authorizing the specific investigative technique in issue is sufficiently strong in the circumstances to [page761] overcome an individual's constitutional right not to be subject to an unreasonable search or seizure.
[27] Despite the many differences between the traditional search warrant power in s. 487 and the general warrant power in s. 487.01, their essential structures are the same. Both require that the police obtain judicial authorization based on sworn evidence before engaging in investigative procedures that interfere with an individual's s. 8 rights. Both sections set out statutory prerequisites that must be satisfied before the authorization can be issued. Broadly speaking, those prerequisites are used to determine when the public interest in the investigation of crime is sufficiently strong to supersede an individual's s. 8 rights. While the criteria are not identical, they serve the same purpose.
[28] The appellant does not challenge the constitutionality of s. 487.01. In approaching the appellant's arguments, one must proceed from the premise that s. 487.01 draws a constitutionally acceptable balance between state powers and individual rights.
[29] Nor does the appellant contest that the trial judge applied the proper test for reviewing the general search warrant issued by Fraser J., namely, whether there was some evidence, as amplified on the review, that might reasonably be believed on the basis of which the authorization could have been granted: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at p. 1452 S.C.R.; R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, at p. 1017 S.C.R.; R. v. Grant, 1999 CanLII 3694 (ON CA), [1999] O.J. No. 327, 132 C.C.C. (3d) 531 (C.A.), at para. 17.
[30] The appellant submits that the trial judge erred in three ways in his s. 8 Charter analysis, namely, in holding that:
(1) section 487.01 of the Code can authorize repeated covert entries and searches of private property; (2) the general search warrant issued in this case complied with s. 487.01(1)(c), which requires that there be "no other provision" in the Code or any other Act of Parliament that "would provide for a warrant, authorization or order permitting the technique, procedure or device" sought by the police; and (3) the general search warrant complied with s. 487.01(1)(b), which requires that the issuing judge be satisfied that "it is in the best interests of the administration of justice to issue the warrant". [page762]
Covert entry and search
[31] The appellant submits that the trial judge erred in holding that s. 487.01 of the Code can authorize repeated covert entries and searches of private property. According to the appellant, such entries and searches are not a "device or investigative technique or procedure" under s. 487.01(1) of the Code. Accordingly, a general search warrant under s. 487.01(1) cannot authorize them. The appellant asserts that s. 487.01 was introduced as part of a legislative scheme to address deficiencies in the search warrant system vis-à-vis police use of electronic devices to record and intercept communications. Specifically, it was devised to address the use of various "devices", "techniques" and "procedures" that were being utilized by the police, but were not authorized under the traditional search power in s. 487 of the Code. According to the appellant, repeated covert entries and searches fall outside the scope of this legislative purpose and description.
[32] For several reasons, I do not accept this submission.
[33] First, and most importantly, the plain meaning of the words of 487.01(1) does not support the interpretation advanced by the appellant. The words "investigative technique", "procedure" and "do any thing described in the warrant" easily encompass police entries and searches. Indeed, the verbal linkage between "entry" and "search" on the one hand, and "investigative technique" and "procedure" on the other hand, is, in my view, both obvious and overwhelming.
[34] Second, s. 487.01(5.1) specifically recognizes that a general warrant issued under subsection (1) can authorize a peace officer "to enter and search a place covertly". It is therefore difficult to see why a court should implicitly subtract from one subsection the very words that are explicitly set out in another subsection. Indeed, it is obvious that s. 487.01(5.1) would make no sense if a general warrant issued under subsection (1) could not be used to authorize covert entries and searches.
[35] Third, the case law case does not support the appellant's submission. In R. v. Noseworthy (1997), 1997 CanLII 1853 (ON CA), 33 O.R. (3d) 641, [1997] O.J. No. 1946 (C.A.), at p. 644 O.R., this court specifically declined to accept the interpretation that the words "do any thing" in s. 487.01(1) ought to be read ejusdem generis with the preceding words "any device or investigative technique or procedure". Similarly, in R. v. Lauda (1998), 1998 CanLII 2776 (ON CA), 37 O.R. (3d) 513, [1998] O.J. No. 71 (C.A.), affd (1998), 1998 CanLII 804 (SCC), 40 O.R. (3d) 159, [1998] 2 S.C.R. 683, [1998] S.C.J. No. 71, this court, at pp. 522-23 O.R., referred to the remedial character of s. 487.01 and confirmed that it "provides a flexible range of investigative procedures, ranging from various forms of surveillance to the search and seizure of tangible objects". [page763]
[36] Fourth, the legislative history giving rise to the enactment of s. 487.01 in 1993 does not support the appellant's submission that Parliament was concerned only with electronic devices to record and intercept communications. Indeed, as stated by Scott Hutchison in his book, Hutchison's Canadian Search Warrant Manual 2005 (Toronto: Thomson Carswell, 2004), at p. 143:
Through s. 487.01 (and s. 487.02), Parliament has provided a broad, plenary warrant-granting power intended to ensure that judicial authorization is legally available for virtually any investigative technique that can be brought within the Hunter conditions for judicial pre-authorization. (Emphasis added)
[37] Fifth, I see no policy reason for struggling to constrain the scope of s. 487.01 by adding words that were not expressly included by Parliament in the provision. In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, at paras. 20 and 21, Major J. said:
A primary, though not exclusive, purpose of the Criminal Code, and penal statutes in general, is to promote a safe, peaceful and honest society. This is achieved by providing guidelines prohibiting unacceptable conduct, and providing for the just prosecution and punishment of those who transgress these norms. The prompt and comprehensive investigation of potential offences is essential to fulfilling that purpose. The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible and informed decision to be made as to whether charges should be laid.
At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conduct criminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the section authorizing their issuance must be interpreted in that light. (Emphasis added) In this passage, the Supreme Court of Canada was considering the interpretation of search warrants under s. 487 of the Code, assuming that the state has established all of the preconditions to the issuance of the search warrant and that those preconditions pass constitutional muster. In my view, the court's reasoning is equally applicable to the interpretation of general search warrants under s. 487.01.
[38] For these reasons, I conclude that a covert entry and search falls squarely within the meaning of an "investigative technique or procedure" under s. 487.01 of the Code.
"No other provision" -- s. 487.01(1)(c) of the Code
[39] The appellant contends that the trial judge erred in this case in not holding that the issuance of the general search warrant violated s. 487.01(c) of the Code, which restricts the [page764] issuance of a general warrant to situations in which "there is no other provision" in the Code or any other federal statute that "would provide for a warrant, authorization or order permitting the technique, procedure or device" sought by the police. According to the appellant, a search warrant could have been issued in this case under either s. 487 of the Code or s. 11 of the CDSA, thus precluding the issuance of a general warrant under s. 487.01 of the Code.
[40] In support of this submission, the appellant relies on the holding of Parrett J. of the British Columbia Supreme Court in R. v. Mero, 2003 BCSC 964 (CanLII), [2003] B.C.J. No. 1499, 109 C.R.R. (2d) 34 (S.C.), at para. 18, that "[t]he availability of a warrant under s. 11(1) of the Controlled Drug and Substances Act would preclude the issuance of a warrant under s. 487.01 by operation of s. 487.01(1)(c)".
[41] I do not accept this submission. The simple fact is that there is no provision in the Code, the CDSA or in any other federal statute that would authorize an unlimited number of covert entries and searches on private property over a two- month period.
[42] Further, Frankel J.A. addressed this issue in R. v. Ford, 2008 BCCA 94 (CanLII), [2008] B.C.J. No. 364, 229 C.C.C. (3d) 443 (C.A.) and rejected the above statement of Parrett J. in Mero, explaining, at paras. 50 and 51, that:
. . . there 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. . . . . .
That the police are in a position to obtain a search warrant does not prevent them from 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. In addition, I expect there will be some cases in which investigative action taken under a general warrant will result in an investigation, or an aspect of it, being abandoned; e.g., where a covert entry reveals that a property does not contain a marihuana grow operation.
[43] I agree with the analysis of Frankel J.A. The focus in the s. 487.01(1)(c) analysis is not on whether there are other investigative techniques that might accomplish the purported investigative purposes or goals of the police; rather, the focus is on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute. In [page765] this case, the police sought to obtain authorization to conduct an unlimited number of covert entries and searches on private property over a two-month period. Except for s. 487.01 of the Code, there is "no other provision in . . . any other Act of Parliament" that could potentially accomplish this goal.
[44] I hasten to add that this is not the end of the inquiry. Although, s. 487.01(c) does not invite an assessment of whether or not the investigative technique or procedure sought to be utilized by the police should be authorized, the question of the merits of an authorization remains a live and important one. However, this question falls to be determined under s. 487.01(1)(b) of the Code. This leads to the appellant's third and, in my view, crucial argument.
"The best interests of the administration of justice" -- s. 487.01(1)(b) of the Code
[45] The appellant submits that the trial judge erred in this case in not holding that the general search warrant violated s. 487.01(1)(b) of the Code, which restricts the issuance of a general warrant to situations where "the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant".
[46] The response to this submission must be anchored in the balancing exercise articulated by Dickson J. in Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at pp. 159-60 S.C.R.:
This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. (Emphasis added) See, also, R. v. Finlay (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632, [1985] O.J. No. 2680 (C.A.), at p. 655 O.R., and Hutchison's Canadian Search Warrant Manual 2005, at p. 162.
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