Canadian Criminal Procedure and Practice/Search and Seizure/Telewarrants

From Wikibooks, open books for an open world
Jump to navigation Jump to search

General Principles[edit | edit source]

A telewarrant is a warrant that is requested by telephone or other means of telecommunication to a designated justice. This circumvents the requirement that a peace officer appear in person before a justice of the peace to obtain the warrant.

Under s. 487.1(1), a peace officer may only apply for a telewarrant where he believes an indictable offence has been committed and it would be “impractical to appear personally”.[1]

The applicant must be a "peace officer" as defined in s. 2 of the Code.[2]

The information sworn to must include:[3]

  1. description of the circumstances that make it impractical for the informant to appear personally to obtain the warrant;
  2. a description of the indictable offence that is alleged
  3. a description of the place to be searched;
  4. a description of the item(s) to be seized;
  5. the grounds for believing t hat the item(s) will be located within the place;
  6. details on any prior applications with respect to the same matter.
  1. s.487.1(1)
  2. Timberwolf Log Trading Ltd. v. British Columbia, 2011 BCSC 142 (CanLII) - applicant not a peace officer
  3. 487.1(4)

Impracticable to Attend in Person[edit | edit source]

The applicant must state the reasons it is "impracticable" to make an application in person before either a judge or justice of the peace. This includes what reasonable efforts were made to make personal appearance possible.[1]

It is often expected that the applicant will verify that a local JP is not available.[2] It has been suggested that where there is a "possibility" that a judge may be available, then the applicant should make an enquiry.[3]

Where the applicant does not state the reasons or efforts made, it may invalidate the warrant.[4] This will be seen, for example, where the police are found to be hiding the real reason of timeliness in seeking a nighttime warrant.[5]

The term "practicable" in this context "means something less than impossible and imports a large measure of practicality, what may be termed common sense."[6]

  1. e.g. R. v. Adansi, 2008 ONCJ 144 (CanLII) at para. 74
    R. v. Breland, 2000 ABPC 110 (CanLII)
    R. v. Brick (Alta. Q.B.) 98 A.R. 208
    R. v. Sattelberger, [1995] 105 Man. R. (2d) 252 (Q.B.) at para. 36
    R. v. Le, 2009 BCCA 14 (CanLII) - failed to give reason for not checking on avail. of JP
  2. R. v. Mui Thi Nguyen, 2006 BCPC 398 (CanLII) at para. 97
  3. R. v. Koprowski, 2005 BCPC 657 (CanLII) at para. 13
  4. e.g. See R. v. Ling, 2009 BCCA 70 (CanLII)
    Adansi -- warrant invalidated
    Ling 2009 BCCA 70 at para. 26, 27 Le at para. 26
  5. e.g. Le at para. 26
  6. R. v. Erickson, 2003 BCCA 693 (CanLII) at para. 33

Accepted Reasons[edit | edit source]

Acceptable reasons for applying for a telewarrant:

  • distance to reach the Judge or Justice of the Peace;[1]
  • application to be made outside court hours;[2]
  • short time limit to obtain the warrant. (e.g. when 4 hour time limit on blood sample)[3]
  1. R. v. Martens, 2004 BCSC 1450 (CanLII) at para. 221
    R. v. Phillips, 2004 BCSC 1797 (CanLII) at para. 24
  2. R. v. Bui and Trac, 2004 BCPC 277 (CanLII) at para. 20
    Martens at para. 221
    R. v. Murphy, 2010 ONSC 595 (CanLII) at para. 23-39
  3. R. v. Pedersen, 2004 BCCA 64 (CanLII) at para. 23