The Oxford Minireference Thesaurus describes the word General as “usual, customary, common, ordinary, normal, standard, regular, everyday, typical, conventional, habitual, run-of-the-mill..”
However a General Warrant is not intended to be common or usual. It’s role for searching is prescribed by set criteria in the Canadian Criminal Code and it is to be applied sparingly, a warrant of limited resort. When it’s reach is extended beyond what is proper, Charter rights suffer and the administration of justice is brought into disrepute. No doubt it is a useful device in specific situations but is not there for “general use” or to avoid meeting more stringent conditions for searches in other areas of the Criminal Code.
The courts have applied a substance over form analysis in determining whether a general warrant is proper. For example the propriety of using a general warrant to intercept future texts , “electronic conversations” as opposed to meeting the more stringent requirements of Part VI of our Canadian Criminal Code dealing with interception of private communications. It is not surprising the courts will apply a substance over form analysis in this area. Our laws have applied the same analysis in many other areas , ex. Is it a lease or a license? Is it a bailment? Labels are not determinative. What is behind the labels in essence is the key for understanding what is really going on. Even more so when Charter rights are at stake.
Perhaps it is time to change the adjective label for General Warrant to “Limited Resort Warrant” or something to that effect. If we are going to use the substance over form analysis in this area perhaps we should change the name of the warrant to coincide closer to what in substance this warrant is and it’s true role.*
William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.