A Commanding Officer‘s (CO) warrant is a valid search warrant unless otherwise authorized by law. If no other authority exists for searching and seizing the item, i.e. consent, incident to arrest, consent, plain view etc, a CO’s warrant shall be used. and can authorize searches of:
quarters under the control of the Canadian Armed Forces (CAF) or the Department of National Defence (DND) and occupied for residential purposes by any person subject to the Code of Service Discipline (CSD) either alone or with that person’s dependents, as well as any locker or storage space located in these quarters and exclusively used by that person or those dependents for personal purposes; and
the personal or moveable property of any person subject to the CSD located in, or about any defence establishment, work for defence or material.
Restriction: A CO warrant shall only be used in those very rare situations where a Criminal Code warrant cannot be obtained due to the unavailability of a civilian judicial authority. MP shall ensure that the use of warrantless search power, i.e. consent search, plain view etc. is not applicable before resorting to a CO search warrant. This injunction will restrict the use of CO search warrants primarily to situations where the item to be searched for and seized lies outside the territorial jurisdiction of Canada. In all other cases, consideration should be given to waiting until a civilian judicial authority is available. Resort to the telewarrant system can also be made where waiting is not practical. Order 2-370.3 provides direction with respect to Criminal Code s. 487.1 telewarrants.
Procedure
When MP contemplates seeking a CO search warrant within Canada, the unit legal advisor and the MP chain of command shall be consulted before the application to the CO is made.
A CO may conduct or directly supervise the investigation of any matter and may even draft the warrant. In such a case, another CO should issue the warrant for reasons of objectivity unless no other CO is readily available and the grounds for issuing the warrant are satisfied.
A CO, in their discretion, may issue a search warrant if satisfied by information on oath or solemn affirmation that there is in any quarters, lockers, storage spaces or personal or moveable property:
any thing on or in respect of which an offence against the National Defence Act (NDA) has or is believed on reasonable grounds to have been committed;
any thing that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence against the NDA; or
any thing that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against a person and for which a person may be arrested without a warrant.
A search warrant should be prepared in writing using Form A. When directed to a civilian peace officer, a search warrant should be prepared using Form B. Both forms can be found in the Queen’s Regulations and Orders for the Canadian Forces (QR&O) 106.07(1).
Prior to issuing a warrant, a CO must receive from MP a completed Information to Obtain (ITO) pursuant to QR&O, art 106.06(2). The ITO is a written, sworn or affirmed statement of the affiant. The ITO will state, at minimum,
describe the location to be searched;
the particular offence within s. 273.3(a), (b) or (c) of the National Defence Act;
a detailed recitation of the grounds upon which the CO’s warrant is sought.
Search and seizure law is ever changing. Drafting of search warrants should only be conducted under the direct supervision of an experienced MP. Searches and seizures often see the intersection between a number of complex, legal issues including legal privilege, personal privacy, confidential informants/agents and property law. The primary emphasis for the drafting of any search warrant is that MP make “full, fair and frank” disclosure of the grounds for seeking the search warrant, including both exculpatory and inculpatory evidence in the statement. MP shall, whenever possible, consult with their legal advisor prior to seeking a CO warrant.
Every CO authorized to receive an ITO for the purpose of issuing a search warrant has the authority to administer the oath or affirmation to the affiant.
The CO of an MP unit shall not issue search warrants.
Execution of CO Search Warrants
Every person authorized to execute a search warrant may seize any thing mentioned in the search warrant and any thing that on reasonable grounds the person believes has been obtained by or has been used in the commission of an offence and shall carry as soon as practical any thing so seized before the CO who issued the search warrant.
The National Defence Act or the QR&O appears to have no equivalent to the Criminal Code of Canada s. 487.3 which denied public access to information arising from the execution of a search warrant. A publication ban includes disclosing the identities of specific offences and victim/witnesses and also protects the identities of justice participants and protects certain investigative techniques. In the absence of such sealing orders, MP should to seek the advice of their local legal advisor before seeking a CO warrant where these issues may be implicated. It may be that in the circumstances a conventional Criminal Code s. 487 warrant should be sought.
Procedures: The following must be adhered to when executing a CO search warrant:
Briefing: Preparation and planning for the execution of a search warrant shall include a briefing of all involved personnel on the restrictions concerning personal searches. This briefing shall be done via an operational order using the Situation Mission Execution Administration Command and Control (SMEAC) format and scanned in the Security and Military Police Information System (SAMPIS);
Time: A CO shall authorize a search warrant referred to in this section to be executed between 0800 and 2200 hours unless the CO is satisfied:
there are reasonable grounds for its execution outside these times;
the reasonable grounds are included in the ITO; and
the warrant authorized a night time execution.
Presentation: It is the duty of MP to produce the warrant for the occupant or owner when requested;
Entrance: Before entering a premises to execute a Search Warrant, MP are required to:
make a demand for entry unless there are reasonable grounds that by so doing it may expose the MP or any other person to imminent bodily harm or death, or result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence. The QR&O makes no provision for a no-announcement entry authorization on a warrant. In circumstances where a no-announcement entry is needed, MP should consult with their legal advisor to determine if a warrant issued under the Criminal Code may be more appropiate;
identify themselves as MP and peace officers;
state the purpose for which entry is demanded;
explain how the search will be conducted unless there are urgent circumstances which require immediate action;
produce the warrant and allow the occupant or owner a reasonable amount of time to examine the document. If requested, give the occupant or owner a copy of the warrant;
unless exigent circumstances exist, ensure at least two MP members are present during a search; and
the detainee has upon arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. The arrestee should be advised of his constitutional rights as soon as it is reasonably practical to do so and MP should facilitate the retaining counsel. The facilitating of this right may be deferred for security reasons or for investigative necessity.
Use of Force
Pursuant to QR&O 106.08(2) and CF MP Gp Order 2-310, MP and MPO authorized to execute a search warrant referred to in Chapter 106 of the QR&O may use such force, and to obtain such assistance, as they consider reasonably necessary to gain entry into the premises.
SAMPIS
All CO search warrant documentation, such as the QR&O Information to Obtain a Search Warrant form, approved CO search warrant form, and operational order, shall be scanned in SAMPIS using the SW text type as per CF MP Gp Order 2-126.
The Search Warrant detail page shall also be completed as per 2-370.8.
Attachments:
NIL
Approval Authority:
COS Readiness
OPI:
J7 Policy
Issued:
27 Apr 16
Supersedes:
NIL
References:
QR&O, Vol II (accessible only on the National Defence network)
