General warrant cannot be used for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant.

R. v. Christiansen 2017 ONCA 941Christiansen was convicted after a jury trial of two counts of possessing narcotics for the purpose of trafficking, and one count of possessing proceeds of crime, $21,500; he appealed his convictions. A police investigation suspected that the accused and another individual were selling drugs out of a clothing store. Following further investigation and surveillance, police obtained a general warrant for the store. Upon confirming the presence of drugs (oxycodone and cocaine), police obtained a CDSA warrant to search the remainder of the store and the accused’s home. Police seized drugs from the store and $21,500 in cash from the accused’s residence.

The ONCA ruled that general warrants under s. 487.01 authorize the use of investigative techniques, procedures or devices, or other things to be done, that would otherwise constitute unreasonable searches. Subsection 487.01(c) restricts general warrants to cases where “there is no other [legislation] that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.” The Supreme Court dealt with this legislative restriction in R. v. TELUS Communications Co., [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16. Justice Moldaver explained, at para. 80, that this requirement ensures that general warrants are to be used “sparingly” when the “investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision.” He explained that s. 487.01(c) serves to ensure that “general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions.”

In this case, the general warrant was issued, in substance, for the same investigative technique available under CDSA, s. 11, namely, to search the Unit. The police could not satisfy the requirements for a search under CDSA, s. 11 because they did not have reasonable grounds to believe there was evidence at the Unit. In effect, said the ONCA, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant. The court therefore allowed Christiansen’s appeal, set aside the convictions against him, and ordered a new trial.

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