Telus: Asking the Right Questions About General Warrants

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Canada, General Warrant, Wiretap, Interception, Text Message, Substantive Equivalence, Investigative Techniques


The general warrant provisions in the Criminal Code have often been interpreted by lower courts in a way which threatens to make that power quite open-ended, and to make those warrants available as a way of making an "end run" around the requirements of other provisions. This note argues that the Supreme Court of Canada is correct, in Telus, to adopt a "substantive equivalence" approach to general warrants, thereby limiting the circumstances in which they can be used.

Lower courts have sometimes taken the view that a general warrant is only unavailable if the proposed technique would fall squarely within some other statutory provision. That approach opens the door to the argument that "the application would not succeed under that other provision, therefore a general warrant can be used." That, in fact, is precisely the argument that the "substantively equivalent" argument is meant to prevent.

The proper approach is to ask not "would this application succeed under another section", but "whether this application would succeed or fail under another section, is that other section the governing authority." That is the point of looking for substantive equivalence: to locate those situations where the rules have anticipated investigative techniques such as the one in question and have decided they are not permitted. It is to see to it that the limits consciously attached to those other procedures continue to control the application. The Court has therefore taken a significant step to confine general warrants within proper bounds.

The article also pursues the implications of the concurring opinion that text messages constitute "private communications" for wiretap purposes, noting that this conclusion would have significant effects on many other investigative techniques.