INTRODUCTION AND BRIEF DESCRIPTION
This section allows judges to issue warrants authorizing peace officers to use investigative techniques that would otherwise constitute an unreasonable search or seizure, if there are reasonable grounds to believe an offence has been or will be committed and it is in the best interests of justice.
SECTION WORDING
487.01(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if (a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; (b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
EXPLANATION
Section 487.01(1) of the Criminal Code of Canada outlines the circumstances under which a peace officer can be authorized to use a device or investigative technique that would otherwise constitute an unreasonable search or seizure. In order to obtain such authorization, a judge must issue a warrant in writing, which can be done by a provincial court judge, a judge of a superior court of criminal jurisdiction, or a judge as defined in section 552. To issue the warrant, the judge must be satisfied by information on oath, in writing, that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed, and that the use of the technique, procedure, or device will provide information concerning the offence. The judge must also be satisfied that issuing the warrant is in the best interests of the administration of justice, and there must be no other provision in any Act of Parliament that would permit the use of the technique, procedure, or device. The purpose of this section is to balance the need for effective law enforcement with the protection of individuals' privacy rights. It recognizes that in certain circumstances, such as when investigating serious offences, it may be necessary for peace officers to use investigative techniques that would otherwise be considered invasive. However, this authority is not unlimited, and strict criteria must be met before a judge will issue a warrant. This ensures that only appropriate, necessary, and proportionate investigative techniques are used, and that individuals' privacy rights are respected to the fullest extent possible in the circumstances.
COMMENTARY
Section 487.01(1) of the Criminal Code of Canada is an important provision that provides for the authorization of investigative techniques and procedures that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person's property. The provision requires a judge of a superior court, provincial court or a defined judge in section 552 to issue a warrant in writing authorizing a peace officer to use any device or investigative technique or procedure that will help obtain information concerning a crime committed or about to be committed. The provision makes it clear that the use of these investigative techniques or procedures is subject to this section. This means that a peace officer who breaches this provision by undertaking an investigative technique or procedure not authorized by the warrant commits an unlawful act. The provision was designed to check the power of police to avoid violating the constitutional rights of individuals. This reflects the idea that individual privacy is worth protecting and that law enforcement should not have unrestricted powers. The first requirement for obtaining a warrant under this provision is that the judge must be satisfied that there are reasonable grounds to believe that an offense against this or any other Act of Parliament has been or will be committed, and that information concerning the offense will be obtained through the use of the technique, procedure or device, or the doing of the thing. This requirement ensures that there is some form of basis for the legal action being requested of the police, and that any search and seizure is done with reason and supported by evidence. The second requirement is that the judge must be satisfied that it is in the best interests of the administration of justice to issue the warrant. This requirement strikes a balance between personal privacy and the interests of the administration of justice. The objective of this provision is to ensure that the state has the ability to prosecute crimes, while taking into account the individual privacy rights protected by the Charter. Lastly, the section provides that there must be no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. This confirms that this provision is a last resort, and that all other legal remedies to obtain the information required must have been exhausted. In conclusion, section 487.01(1) of the Criminal Code of Canada provides a framework for the authorization of investigative techniques and procedures that could potentially violate the constitutional rights of individuals if not authorized. It balances the interests of justice with individual privacy rights. However, it should be noted that amendments and judicial interpretations of the provision may evolve to meet the ever-changing crime landscape and ensure that the section remains effective for both police enforcement and civil liberty protection.
STRATEGY
As one of the most powerful tools available to law enforcement in Canada, section 487.01(1) of the Criminal Code of Canada offers the potential for significant investigative gains while posing significant legal, ethical and strategic considerations. One key strategic consideration is the need for sufficient evidence and a compelling case supporting the need to use such a search warrant. This largely relies upon the quality and nature of the evidence, the reason for the warrant, and the required level of disclosure to obtain one. Law enforcement agencies must be able to show reasonable grounds to warrant the use of investigative techniques and the need for a warrant while the judge must be satisfied that it is in the best interests of the administration of justice to issue the warrant. Another consideration focuses on how the evidence will be obtained. Law enforcement agencies must carefully weigh the risks associated with the specific technique outlined in the warrant. The use of invasive or controversial techniques, particularly those affecting individuals' rights, can have a serious impact on the credibility of the evidence and also the potential for reputational damage to the agency and loss of public trust. Strategies to be employed can include the selection of investigative techniques that possess a higher level of credibility and public trust and employing a broad range of techniques to avoid over-reliance on the use of any one particular method. Agencies can also work to build relationships with the communities they serve and the public at large. This can increase public support for investigations and make it more likely for those who may have relevant information to come forward. To maintain the credibility of the evidence obtained through section 487.01(1), officers must keep detailed records of all search maneuvers used during the investigation. These records are subject to review in court proceedings and will directly influence the outcomes of these cases. In conclusion, agencies must navigate the complex legal, strategic and ethical landscape when utilizing section 487.01(1) of the Criminal Code of Canada. By balancing the risks associated with the method of search warrant employed, conducting robust investigations, and adhering to strict documentation protocols, law enforcement agencies can obtain evidence that withstands legal and public scrutiny and keep their confidence level high.