Jun 1, 2020

Re Application for a Warrant, s. 487.05 Criminal Code, 2020 ONCJ 249 - Summary

Re Application for a Warrant, s. 487.05 Criminal Code, 2020 ONCJ 249 (CanLII)

In this very short decision, judge Daniel Moore gives guidance to police forces requesting the judicial authorisation to collect DNA samples in the COVID-19 pandemic.

While the prerequisite conditions for the emission of the warrant were met [par. 1], judge Moore denied the application as he was not "satisfied that it is in the best interests of the administration of justice to issue the warrant." [par. 2]

Indeed, the information to obtain submitted in support of the warrant application made no reference to the COVID-19 pandemic [par. 5]. As such, it made it impossible for him to assess its potential health risks to the target of the warrant, the officers who would execute it, as well as—given the target here was detained [par. 4]—the prison personnel and inmates, even though the proper administration of justice required an understanding of that impact [par. 6]. It also prevented him from making sure through terms and conditions, as required by section 487.06(2) of the Criminal Code, "that the taking of the samples authorized by the warrant, order or authorization is reasonable in the circumstances."

He provides a list of "issues might be addressed" in relation to that matter, though stressing that they "are not necessarily preconditions to issuance of a warrant" [par. 7]. They are:
"(a) Can the sample be taken safely?
(b) Do Covid-19 considerations mean that a sample other than a blood sample might be more safely obtained?
(c) Has the officer tasked with taking the sample been given any additional training in relation to Covid-19?
(d) Will there be screening of the officer tasked with taking the sample to make sure he or she does not have any active symptoms prior to entering the institution and has not been in contact with a Covid positive or presumptive individual in the previous 14 days?
(e) What personal protective equipment is available to both the officer taking the sample and to [the target]?
(f) Can the video recording of the taking of the sample be achieved without exposing [the target] to more than one officer?
(g) Are there any potential collateral consequences for [the target] from coming into contact with the officer(s)? For example, will he be required to go into isolation for 14 days after providing the sample?
(h) What is the potential impact on the operations of the detention centre, its employees, and other inmates?
(i) Is there any urgency to proceeding with the request at this time or is it possible to delay the collection of the sample until conditions improve?
(j) Does Covid-19 create any issues for the implementation of [the target]’s right to consult with counsel prior to the taking of the sample? Will he be able to access a telephone in private? Counsel have reported significant delays, sometimes for days, in getting access to their clients.

It is rare, and welcome, to see these issues raised proprio motu by the warrant judge. Still, it is likely that many more similar applications have been rubber-stamped without such forethought. It will be interesting to see if the defence challenges the constitutional validity of such warrants, that were emitted without a proper framework to limit the health risks. Though not invoked by judge Moore, the protections of sections 7 and 8 of the Canadian Charter of Rights and Freedoms would certainly seem to cover such a situation.