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