R. v. Ha: Upholding General Warrants Without Asking the Right Questions
Warrant, Search, Criminal Code Section 487, Constitutional Minimum, Hunter v Southam, General Warrant
To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that:
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.
That is perfectly true. It is quite possible, however, that the reason it is true is that Parliament has decided that there ought not to be a power to conduct "an unlimited number of covert entries and searches on private property over a two month period." Courts have so far been failing even to consider the possibility that the reason some of these powers do not exist is because Parliament has decided that they should not exist.
The distinction which so far has not been given attention in the case law is between searches which are not authorized by any provision because they are of an unanticipated type, and those which are not authorized by any provision because they were anticipated and were deliberately ruled out. One would think, for example, that in setting minimum standards for physical searches of a place in section 487 (standards which correspond to the constitutional minimum, according to Hunter v. Southam Inc.), Parliament has stated quite clearly that physical searches based on less justification than that contained in those standards are not authorized. The question, is this type of search allowed? would not be an unanticipated question: it would be one that was anticipated and answered in the negative. To allow the general warrant provision to authorize both unanticipated and deliberately excluded searches is to ignore a crucial distinction.
Steve Coughlan, "R. v. Ha: Upholding General Warrants Without Asking the Right Questions" (2009) 65 CR (6th) 41.